FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-10480

Plaintiff-Appellee, D.C. No.

v.  1:08-CR-00177-

OWW-1 URIEL RIVERA-GOMEZ,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, District Judge, Presiding

Argued and Submitted

February 8, 2010—San Francisco, California

Filed December 6, 2010

Before: Alfred T. Goodwin, Marsha S. Berzon and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Concurrence by Judge Goodwin

19355
COUNSEL

Daniel J. Broderick, Federal Defender, and Douglas J.

Beevers, Assistant Federal Defender, Fresno, California, for

the defendant-appellant Rivera-Gomez.

UNITED STATES v. RIVERA-GOMEZ 19357
Lawrence G. Brown, United States Attorney, and Ian L. Garriques, Assistant United States Attorney, Fresno, California,

for plaintiff-appellee the United States.

OPINION

IKUTA, Circuit Judge:

In calculating the defendant’s sentencing range under the

U.S. Sentencing Guidelines, the district court counted the

defendant’s prior state resisting arrest conviction as part of his

criminal history, see § 4A1.1, rather than as part of the

offense level for his crime of conviction, see § 2L1.2.1

Because a district court should account for a prior state conviction as part of the offense level calculation where that conviction was for conduct that occurred in the course of the

defendant’s attempt “to avoid detection or responsibility” for

the crime of conviction, § 1B1.3(a)(1)(A), we vacate the

defendant’s sentence and remand for resentencing.

I

Uriel Rivera-Gomez, a Mexican citizen, gained legal status

in the United States through an amnesty program in the late

1980s. He was subsequently convicted of attempted murder in

1992. In July 2000, he was convicted for driving under the

influence of alcohol. As a result of these convictions, he lost

his legal status and was deported in January 2001. Sometime

thereafter, Rivera-Gomez returned illegally to the United

1The Guidelines state that “[t]he court shall use the Guidelines Manual

in effect on the date that the defendant is sentenced,” § 1B1.11(a), unless

use of that Manual “would violate the ex post facto clause of the United

States Constitution,” § 1B1.11(b)(1). Because there is no ex post facto

issue in this case, we use the 2007 edition of the Guidelines Manual,

which was in effect on October 27, 2008, at the time of Rivera-Gomez’s

sentencing. 

19358 UNITED STATES v. RIVERA-GOMEZ
States, and in July 2003, he was convicted of misdemeanors

for making a threat with intent to terrorize and for battery. 

In March 2005, Visalia police officers were investigating

reports of drug use by individuals in front of a certain residence when they noticed a modified shotgun inside a vehicle.

When officers approached Rivera-Gomez, who was among

those standing in front of the house, Rivera-Gomez pushed

one of them aside and fled into the residence. Officers followed in pursuit, but Rivera-Gomez was able to escape after

attempting to strike them. Two weeks later, officers located

Rivera-Gomez at his home. Again, Rivera-Gomez attempted

to escape, this time by kicking a hole through the drywall and

hanging from the ceiling rafters, but officers were eventually

able to restrain and arrest him after deploying tear gas and a

Taser. 

Rivera-Gomez was convicted in state court of the state felony of resisting arrest, for which he served three years in state

prison. Directly before his release, in May 2008, the federal

government charged Rivera-Gomez with being a deported

alien found in the United States after illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2).2

 Rivera-Gomez pleaded

2

8 U.S.C. § 1326 states in relevant part: 

(a) In general 

Subject to subsection (b) of this section, any alien who— 

(1) has been denied admission, excluded, deported, or

removed or has departed the United States while an order of

exclusion, deportation, or removal is outstanding, and thereafter 

(2) enters, attempts to enter, or is at any time found in, the

United States, . . . 

shall be fined under Title 18, or imprisoned not more than 2

years, or both. 

(b) Criminal penalties for reentry of certain removed aliens 

UNITED STATES v. RIVERA-GOMEZ 19359
guilty to the charge but objected to the district court’s application of the Guidelines, because the court had included his

prior state sentence for resisting arrest as part of the criminal

history calculation. The district court denied his objection,

and Rivera-Gomez timely appealed.

II

[1] To assist in explaining Rivera-Gomez’s objection to

the district court’s sentencing calculation, we set forth a brief

overview of the procedure that a district court must apply to

determine the Guidelines’ range for a § 1326 conviction.

When sentencing a defendant for a § 1326 conviction, a district court must calculate both the number of points associated

with the defendant’s offense level and the number of points

associated with the defendant’s criminal history. Section

1B1.1 provides step-by-step instructions for this process. The

district court must first determine the correct offense guideline section applicable to the offense of conviction, which in

this case is § 2L1.2 (Unlawfully Entering or Remaining in the

United States).3See § 1B1.1(a). 

Notwithstanding subsection (a) of this section, in the case of any

alien described in such subsection— 

. . . 

(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined

under such title, imprisoned not more than 20 years, or both

. . . . 

3Section 2L1.2, Unlawfully Entering or Remaining in the United States,

states the following: 

(a) Base Offense Level: 8 

(b) Specific Offense Characteristic 

(1) Apply the Greatest: 

If the defendant previously was deported, or unlawfully

remained in the United States, after— 

19360 UNITED STATES v. RIVERA-GOMEZ
The Guidelines next direct the court to “[d]etermine the

base offense level and apply any appropriate specific offense

characteristics, cross references, and special instructions contained in the particular guideline in Chapter Two in the order

listed.” § 1B1.1(b). In this case, the § 2L1.2(a) guideline provides a single base offense level of eight points for violations

of § 1326, and sets forth “Specific Offense Characteristics”

that require the district court to increase the offense level if

the defendant was previously deported or unlawfully

remained in the United States after being convicted of specified felonies.4

 Section 1B1.3 (Relevant Conduct) explains that

the district court is to determine the specific offense characteristics on the basis of whether they are “acts and omissions

committed, aided, abetted, counseled, commanded, induced,

procured or willfully caused by the defendant . . . that

occurred during the commission of the offense of conviction,

in preparation for that offense, or in the course of attempting

to avoid detection or responsibility for that offense.”

§ 1B1.3(a)(1)(A) (emphasis added). 

(A) a conviction for a felony that is (i) a drug trafficking

offense for which the sentence imposed exceeded 13 months;

(ii) a crime of violence; (iii) a firearms offense; (iv) a child

pornography offense; (v) a national security or terrorism

offense; (vi) a human trafficking offense; or (vii) an alien

smuggling offense, increase by 16 levels; 

(B) a conviction for a felony drug trafficking offense for

which the sentence imposed was 13 months or less, increase

by 12 levels; 

(C) a conviction for an aggravated felony, increase by 8

levels; 

(D) a conviction for any other felony, increase by 4 levels;

or 

(E) three or more convictions for misdemeanors that are

crimes of violence or drug trafficking offenses, increase by

4 levels. 

4Section 2L1.2 does not set forth any cross references or any applicable

special instructions. 

UNITED STATES v. RIVERA-GOMEZ 19361
Once the base offense level and special offense characteristics are determined, the district court must calculate applicable upward adjustments, including those relating to victim,

role, and obstruction of justice. See § 1B1.1(c). Potentially

relevant here, a court may impose an upward adjustment if the

victim was a government officer, see § 3A1.2(a), if the defendant assaulted a law enforcement officer “in a manner creating a substantial risk of serious bodily injury,” see

§ 3A1.2(c)(1), or if the defendant “recklessly created a substantial risk of death or serious bodily injury to another person

in the course of fleeing from a law enforcement officer,” see

§ 3C1.2. Finally, the district court must calculate any applicable downward adjustment for the defendant’s acceptance of

responsibility. See § 1B1.1(e). 

After the district court has calculated the offense level, it

must determine the defendant’s criminal history category pursuant to Chapter 4(A). See § 1B1.1(f). The court makes this

calculation by adding points for each qualifying prior sentence according to the instructions in § 4A1.1.5

 The term

5Section 4A1.1, Criminal History Category, provides: 

The total points from items (a) through (f) determine the criminal

history category in the Sentencing Table in Chapter Five, Part A.

(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month. 

(b) Add 2 points for each prior sentence of imprisonment of at

least sixty days not counted in (a). 

(c) Add 1 point for each prior sentence not counted in (a) or (b),

up to a total of 4 points for this item. 

(d) Add 2 points if the defendant committed the instant offense

while under any criminal justice sentence, including probation,

parole, supervised release, imprisonment, work release, or escape

status. 

(e) Add 2 points if the defendant committed the instant offense

less than two years after release from imprisonment on a sentence

counted under (a) or (b) or while in imprisonment or escape sta19362 UNITED STATES v. RIVERA-GOMEZ
“prior sentence” is defined in § 4A1.2(a) to mean “any sentence previously imposed upon adjudication of guilt, whether

by guilty plea, trial, or plea of nolo contendere, for conduct

not part of the instant offense.” § 4A1.2(a) (second emphasis

added). The commentary to this section of the Guidelines

defines “conduct that is part of the instant offense” to mean

“conduct that is relevant conduct to the instant offense under

the provisions of § 1B1.3 (Relevant Conduct).” § 4A1.2 cmt.

n.1. 

[2] In sum, when a defendant has received a prior sentence, the district court must determine whether to take the

prior sentence into account in either the base offense level calculation or the criminal history calculation. To do so, the district court must determine whether the conduct underlying

that prior sentence is relevant to the crime of conviction, as

defined in § 1B1.3(a)(1)(A). If the conduct underlying the

prior sentence constitutes relevant conduct to the crime of

conviction, then it must be included in the offense level calculation (i.e., it is accounted for as part of the specific offense

characteristics), and cannot be included in the criminal history

calculation even if the conduct resulted in a criminal conviction.6

See § 4A1.2 cmt. n.1. On the other hand, if the conduct underlying the prior sentence is not relevant to the crime of conviction, then the prior sentence must be included as part of the

tus on such a sentence. If 2 points are added for item (d), add

only 1 point for this item. 

(f) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under

(a), (b), or (c) above because such sentence was counted as a single sentence, up to a total of 3 points for this item. 

The Guidelines allow adjustments to be made if a defendant is a career

offender, see § 4B1.1, but no such adjustments are applicable in this case.

6There are exceptions to this principle. For example, prior convictions

may be considered in determining the special offense characteristics under

§ 2L1.2, and still be counted as part of criminal history. See § 2L1.2 cmt.

n.6. 

UNITED STATES v. RIVERA-GOMEZ 19363
defendant’s criminal history score. See § 4A1.1. The interlocking definitions of relevant conduct and prior sentence

ensure “that a defendant’s criminal history is not overstated”

by counting the same conduct in the offense level calculation

and again in the criminal history calculation. United States v.

Cruz-Gramajo, 570 F.3d 1162, 1170 (9th Cir. 2009).

III

We now apply the framework described above to this case.

We have jurisdiction pursuant to 18 U.S.C. § 3742. We

review the district court’s interpretation of the Guidelines de

novo, its findings of fact for clear error, and its application of

the Guidelines to the facts of this case for abuse of discretion.

Cruz-Gramajo, 570 F.3d at 1167. In considering a district

court’s application of the Guidelines to undisputed facts, we

review the district court deferentially, acknowledging that

“the district court is in a better position than the appellate

court to decide whether a particular set of individual circumstances” meets the Guidelines’ criteria, Buford v. United

States, 532 U.S. 59, 64 (2001), and understanding “the limited

value of uniform court of appeals precedent” regarding such

“fact-bound” legal issues, id. at 66. 

In sentencing Rivera-Gomez, the district court assigned

eight points for Rivera-Gomez’s base offense level. See

§ 2L1.2(a). After considering “special offense characteristics,” the district court increased the offense level by sixteen

points because Rivera-Gomez reentered the country after

being convicted of attempted murder, which is a crime of violence. See § 2L1.2(b)(1)(A)(ii). The district court did not

make any upward adjustments for victim, role, or obstruction

of justice, see § 1B1.1(c), but reduced Rivera-Gomez’s

offense level two points by applying a downward adjustment

for acceptance of responsibility. See § 3E1.1(a). 

With respect to the criminal history calculation, the district

court determined that Rivera-Gomez had a total of twelve

19364 UNITED STATES v. RIVERA-GOMEZ
criminal history points, including three points for his state

resisting-arrest conviction.

As noted above, Rivera-Gomez argued that the state

resisting-arrest conviction could not be included in the criminal history calculation, because he resisted arrest with the

intent of avoiding detection for his crime of illegal reentry.

The district court rejected this argument, holding that the

resisting-arrest conduct must be considered separately from

the illegal reentry offense because resisting arrest “creates an

exceedingly dangerous situation that really compounds and

aggravates the nature of the crimes that were initially under

investigation.” Relying on a Fifth Circuit case, United States

v. Vargas-Garcia, 434 F.3d 345 (5th Cir. 2005), the district

court concluded that the state resisting-arrest offense was

properly included as part of Rivera-Gomez’s criminal history,

and that Rivera-Gomez’s intent in resisting arrest was irrelevant. 

[3] We disagree with the district court’s reasoning. Under

the plain language of the Guidelines, United States v. Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2009), conduct that

occurred “in the course of attempting to avoid detection or

responsibility” for the crime of conviction constitutes relevant

conduct, and it should therefore be included in the specific

offense characteristics. § 1B1.3(a)(1)(A). Moreover, if the

conduct underlying the state conviction constitutes relevant

conduct, then it cannot be considered a “prior sentence” for

purposes of calculating criminal history points. § 4A1.2 cmt.

n.1. Although Rivera-Gomez’s resisting-arrest conduct

occurred long after the reentry offense took place, nothing in

the Guidelines establishes that conduct ceases to be relevant

after a specified period of time. Therefore, if Rivera-Gomez

resisted arrest in order to “avoid detection or responsibility”

for the illegal reentry offense (as he now claims), and there is

no other basis for holding that the resisting-arrest offense is

not relevant conduct to the crime of conviction, the district

UNITED STATES v. RIVERA-GOMEZ 19365
court erred in accounting for the conduct as a prior sentence,

rather than as part of the offense level. 

In reaching this conclusion, we join the only other circuit

that has directly addressed this issue. See United States v.

White, 335 F.3d 1314, 1319-20 (11th Cir. 2003). In White, an

alien arrested on drug charges gave a false name and identification to the state police. Id. at 1315-16. After the state discovered his true identity, the alien was convicted and

sentenced for giving false information to a police officer. Id.

at 1316. Immediately after the alien received his state sentence, he was charged and subsequently pleaded guilty to a

§ 1326 offense for being found in the United States after his

1987 and 1991 deportations. Id.

In calculating the criminal history for the alien’s sentence,

the district court included two criminal history points for the

state false-information conviction, on the ground that the conduct underlying that conviction was not part of the § 1326

offense. Id. The Eleventh Circuit determined that the district

court had erred, noting that “in many circumstances,” an

alien’s false statement to the police “could constitute an

action taken to avoid detection” for the offense of being found

in the United States in violation of § 1326(a), the same

offense for which Rivera-Gomez was convicted. Id. at 1320.7

Because the record established that the alien gave a false

name to avoid detection or responsibility for his reentry

offense, the court vacated the alien’s sentence and remanded

for resentencing. Id. at 1320-21.

7Both Rivera-Gomez and the alien in White were charged with “being

found” in the United States after a deportation order, in violation of

§ 1326(a). See 335 F.3d at 1316 n.1 (quoting § 1326(a)). Although White

observed that the government’s argument that the alien’s offenses were

unrelated and arose from two different courses of action “would be convincing if the government had . . . indicted White of entering the U.S.,”

id. at 1320, that issue is not before us here. 

19366 UNITED STATES v. RIVERA-GOMEZ
Neither our opinion in Cruz-Gramajo, 570 F.3d 1162,

relied on by the government, nor the Fifth Circuit’s reasoning

in Vargas-Garcia, 434 F.3d 345, the case on which the district court relied, are contrary to our conclusion that a

resisting-arrest offense can be relevant conduct for a § 1326

reentry offense. Both of these cases addressed a different

issue: whether all crimes committed by an alien from the time

of the unlawful reentry to the time of arrest for committing a

§ 1326 reentry offense constitute relevant conduct, and therefore must be excluded from the criminal history calculation.8

As explained in Cruz-Gramajo, this theory was based on the

following syllogism: (1) a violation of § 1326 “is considered

a continuing offense that extends from the moment of illegal

reentry until discovery by immigration officials,” 570 F.3d at

1168 (citing United States v. Reyes-Pacheco, 248 F.3d 942,

946 (9th Cir. 2001)); (2) the explanation of relevant conduct

in § 1B1.3 includes any conduct “that occurred during the

commission of the offense of conviction,” id.(emphasis omitted); (3) therefore, the defendants’ “intervening state offenses

occurred ‘during’ their § 1326 offenses as a temporal matter,

and this temporal relationship is sufficient to deem the state

offenses ‘relevant conduct,’ thereby precluding the district

court from considering the convictions as part of their criminal history calculation.” Id. at 1168-69 (footnote omitted). We

rejected this argument based in part on our conclusion that the

Guidelines did not contemplate that the defendants’ state convictions would be accounted for in the Guidelines’ calculation

of the offense level under § 2L1.2. See id. at 1172-74.

Accordingly, the district court’s decision to include the state

8Although one of the defendants in Cruz-Gramajo was convicted under

state law for evading a police officer during a traffic stop, 570 F.3d at

1166, an offense that is similar to Rivera-Gomez’s state resisting-arrest

offense, Cruz-Gramajo’s holding was focused solely on the question

whether a “district court [is precluded] from considering [state] convictions as part of [a defendant’s] criminal history calculation” when the state

offenses were committed during a § 1326 offense,” id. at 1168-69. The

court in Cruz-Gramajo did not consider Rivera-Gomez’s argument that

the state offense was committed to avoid detection for the § 1326 offense.

UNITED STATES v. RIVERA-GOMEZ 19367
convictions in the criminal history calculations was consistent

with the Guidelines’ policy goals of avoiding either overstating or understating a defendant’s criminal history. Id.

The Fifth Circuit reached a similar conclusion in VargasGarcia, 434 F.3d 345. In that case, an alien was arrested and

convicted for a state resisting-arrest offense after he had illegally reentered the country but before he had been arrested for

that § 1326 offense. Id. at 346. The alien argued at the sentencing stage for the § 1326 reentry conviction that his

resisting-arrest offense was relevant conduct for the illegal

reentry offense, “since his resisting arrest occurred during the

commission of or in the course of attempting to avoid detection or responsibility for his illegal reentry.” Id. at 347. The

court did not address the question whether resisting arrest “to

avoid detection or responsibility” for the crime of illegal reentry constitutes relevant conduct under § 1B1.3(a)(1)(A), but

rather focused solely on the alien’s continuing offense argument. In rejecting this argument, the court reasoned that

although illegal reentry is a continuing offense, “the concealed and extended nature of this offense cannot shield multiple and ‘severable instances of unlawful conduct’ from their

appropriate consequences at sentencing.” Id. at 349 (quoting

United States v. Banashefski, 928 F.2d 349, 352 (10th Cir.

1991)). Further, the court concluded that the resisting-arrest

offense was separable from the illegal reentry offense because

the prior offense was “based on ‘different criminal conduct

that harmed different societal interests.’ ” Id. at 350 (quoting

United States v. Beddow, 957 F.2d 1330, 1339 (6th Cir.

1992)). Accordingly, the Fifth Circuit held that the district

court did not err in counting the alien’s resisting-arrest

offense as part of his criminal history. Id. at 352. 

In this case, Rivera-Gomez does not raise the continuing

offense theory, and so Cruz-Gramajo and Vargas-Gomez are

not directly applicable. Nor is the concern expressed in CruzGramajo regarding the risk of undercounting a defendant’s

criminal conduct applicable here: treating the state-resisting

19368 UNITED STATES v. RIVERA-GOMEZ
arrest conviction as relevant conduct rather than criminal history will not necessarily lead to an understatement in the

Guidelines’ calculation, because the conduct can be accounted

for in the offense level. For example, if the district court

determines that the conduct underlying Rivera-Gomez’s

resisting-arrest conviction was intended to avoid detection for

the reentry offense, the district court would have to recalculate the offense level determination and, as noted above, could

consider imposing an upward adjustment under § 3A1.2(a)

(victim was a government officer), § 3A1.2(c)(1) (defendant

assaulted a law enforcement officer “in a manner creating a

substantial risk of serious bodily injury”), or § 3C1.2 (defendant “recklessly created a substantial risk of death or serious

bodily injury to another person in the course of fleeing from

a law enforcement officer”). 

IV

[4] Because the district court erred in determining that

Rivera-Gomez’s state resisting-arrest conviction could not be

“relevant conduct” under § 1B1.3(a)(1)(A) as a matter of law,

even if Rivera-Gomez intended to “avoid detection or responsibility” for his reentry offense, it did not make a factual finding regarding Rivera-Gomez’s intent in resisting arrest. Nor is

his intent clear from the record. Consequently, we vacate

Rivera-Gomez’s sentence and remand to the district court for

proceedings consistent with this opinion.9

9Though the concurrence observes that the district court’s error may

have been harmless, we have previously interpreted Supreme Court precedent as having “effectively overruled” harmless error review in a case

such as this one. See United States v. Munoz-Camarena, 621 F.3d 967,

969-70 (9th Cir. 2010) (per curiam) (citing Kimbrough v. United States,

552 U.S. 85, 108 (2007) and Gall v. United States, 552 U.S. 38, 49

(2007)). Therefore, we remand for resentencing. Id. Because we vacate

and remand on this basis, we need not reach Rivera-Gomez’s arguments

regarding other alleged sentencing errors. 

UNITED STATES v. RIVERA-GOMEZ 19369
VACATED and REMANDED.

GOODWIN, Circuit Judge, concurring:

I concur in the result and concur in the opinion. I write only

to point out the folly of this appeal and the judicial inefficiency now inherent in the review of some sentencing

appeals.

As an initial point, Rivera-Gomez’s original sentence is

supported by the Guidelines, even if his conviction for resisting arrest is completely removed from the calculation. Dropping the three criminal history points originally added for that

conviction, Rivera-Gomez’s total criminal history points

would be nine, which supports a criminal history category of

IV. See U.S.S.G., Ch. 5, Part A (Sentencing Table). In combination with the original offense level of twenty-two—which

reflected no upward adjustments for his conduct in resisting

arrest—these calculations support a custodial sentence

between sixty-three and seventy-eight months under the

Guidelines. Id. Accordingly, Rivera-Gomez’s original sentence of seventy-seven months was within the Guidelines,

even with no adjustments made for his resisting-arrest conviction.

It is possible the district court could sentence RiveraGomez towards the low-end of this new Guidelines range—as

it did under its initial higher calculation—resulting in a new

sentence below seventy-seven months. It would seem more

likely, however, that on remand defendant will face a higher

Guidelines range, which could potentially result in a longer

sentence than the one first imposed. First, it seems fairly obvious that there will be at least a three-level upward adjustment

of the offense under § 3A1.2(a), as the victim of the resistingarrest conduct was a government officer. This adjusted

offense level of twenty-five would result in a Guidelines

19370 UNITED STATES v. RIVERA-GOMEZ
range of 84 to 105 months. Two additional upward adjustments are also possible. See §§ 3A1.2(c)(1) and 3C1.2. If all

three of these adjustments are made, Rivera-Gomez’s offense

level could reach thirty-three, resulting in a Guidelines range

of 188 to 235 months. Accordingly, the result of this “successful appeal” could well be that Rivera-Gomez’s sentence

increases, potentially as much as tripling.

Despite knowing all this, we are unable under current Ninth

Circuit precedent to affirm the sentence originally given by

the district court and to dispense with this case. In U.S. v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc), this Court

held remand was necessary for significant procedural error,

which includes any incorrect calculation of the sentencing

range. See also United States v. Munoz-Camarena, 621 F.3d

967, 969 (9th Cir. 2010) (per curiam) (“A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for

resentencing.”).

The Supreme Court has instructed, however, that remand

for resentencing must pass a harmless error test. Williams v.

U.S., 593 U.S. 193, 202 (1992). “[R]emand is appropriate

unless the reviewing court concludes, on the record as a

whole, that the error was harmless, i.e., that the error did not

affect the district court’s selection of the sentence imposed.”

Id. Williams remains good law. See, e.g., U.S. v. Smith, 561

F.3d 934, 942 (9th Cir. 2009). Mandatory remand for even a

harmless mistake in calculating the Guidelines makes even

less sense now that the Guidelines are purely advisory. See

United States v. Booker, 543 U.S. 220, 244-45, 259-60

(2005). 

As the government is not seeking a higher sentence, this

court could easily conclude that the error in determining the

sentencing range here was harmless. It would be sadly ironic

for Rivera-Gomez to win his appeal and then be given a longer sentence, possibly much longer. For the sake of judicial

UNITED STATES v. RIVERA-GOMEZ 19371
efficiency and good common sense, it seems to me that the

procedural error trigger of Carty needs to be refashioned to

admit the harmless error standard of Williams. 

19372 UNITED STATES v. RIVERA-GOMEZ