FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50088

Plaintiff-Appellee, D.C. No.

v. 3:08-CR-02701-  LAB-1 EDUARDO MUNOZ-CAMARENA,

Defendant-Appellant. ORDER AND

OPINION 

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued February 5, 2010

Submitted September 3, 2010

Pasadena, California

Filed January 28, 2011

Before: Betty B. Fletcher, Harry Pregerson, and

Susan P. Graber, Circuit Judges.

Per Curiam Opinion

1761
COUNSEL

Caroline Han, Mark R. Rehe, Office of the U.S. Attorney, San

Diego, California, for the plaintiff-appellee. 

Erica Kristine Zunkel, Steven Francis Hubachek, Kristi A.

Hughes, Federal Public Defenders of San Diego, Inc., San

Diego, California, for the defendant-appellant.

ORDER

The Opinion filed September 3, 2010, slip op. 13455, and

appearing at 621 F.3d 967 (9th Cir. 2010), is withdrawn. It

may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

UNITED STATES v. MUNOZ-CAMARENA 1763
The petition for panel rehearing is granted in part. A new

opinion is being filed concurrently with this order.

The parties may file new petitions for rehearing or petitions

for rehearing en banc.

OPINION

PER CURIAM:

Eduardo Munoz-Camarena appeals his 65-month sentence

for attempted illegal re-entry after deportation in violation of

8 U.S.C. § 1326(a) & (b). While his appeal was pending, the

Supreme Court issued its decision in Carachuri-Rosendo v.

Holder, 130 S. Ct. 2577 (2010), which casts doubt on the district court’s calculation of the recommended Guidelines sentence in this case. We vacate the Appellant’s sentence and

remand for re-sentencing.

The U.S. Sentencing Guidelines Manual1 instructs a district

court to increase the base offense level for illegal re-entry by

eight points if the defendant was previously convicted of an

aggravated felony and then deported, U.S.S.G.

§ 2L1.2(b)(1)(C), or four points if the defendant was previously convicted of a felony and then deported, U.S.S.G.

§ 2L1.2(b)(1)(D). The district court treated MunozCamarena’s three previous California convictions for simple

possession, Cal. Health & Safety Code § 11350(a), as being

equivalent to a conviction for federal recidivist possession, 21

U.S.C. § 844(a). Recidivist possession is an aggravated felony.2

1All references are to the 2008 version of the Guidelines Manual. 

2Simple possession by itself is not an aggravated felony. The statutory

list of aggravated felonies includes “any felony punishable under . . . the

Controlled Substances Act (§ 21 U.S.C. § 801 et seq.).” 18 U.S.C.

§ 924(c). A felony is a crime for which the “maximum term of imprison1764 UNITED STATES v. MUNOZ-CAMARENA
Accordingly, the district court applied an eight-level Guidelines enhancement.

[1] We now know that a second or subsequent conviction

for simple possession does not qualify as an aggravated felony “when, as in this case, the state conviction is not based

on the fact of a prior conviction.” Carachuri-Rosendo, 130 S.

Ct. at 2579. Because the Defendant’s prior convictions do not

qualify as aggravated felonies, but do qualify as felonies,3 the

district court should have applied a four-level enhancement.

A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us

to remand for resentencing. See United States v. Brooks, 610

F.3d 1186, 1198-99 (9th Cir. 2010); United States v. Coronado, 603 F.3d 706, 712 (9th Cir. 2010) (citing United States

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

The Government argues that a remand is unnecessary

because the district court’s error was harmless. The district

court stated that it was going to sentence Munoz-Camarena to

65 months regardless of whether the four- or eight-level

ment” authorized is “more than one year.” 18 U.S.C. § 3156(a)(3). Under

the Controlled Substances Act, first-time simple possession is a federal

misdemeanor because the maximum authorized sentence is less than one

year. 21 U.S.C. § 844(a). However, a conviction for simple possession

“after a prior conviction under this subchapter or . . . under the law of any

State” — recidivist simple possession — is a felony with a maximum twoyear sentence. Id.

3Munoz-Camarena has three prior convictions for simple possession,

two convictions for illegal entry, 8 U.S.C. § 1325, and one for illegal reentry, 8 U.S.C. § 1326. The Sentencing Guidelines define a felony as “any

federal, state, or local offense punishable by imprisonment for a term

exceeding one year.” U.S.S.G. § 2L1.2 cmt. n.2. The maximum sentence

authorized by California law for simple possession is one year, Cal. Health

& Safety Code § 11350(b), but the maximum authorized sentence for illegal entry and re-entry is greater than one year, 8 U.S.C. §§ 1325(a),

1326(a). 

UNITED STATES v. MUNOZ-CAMARENA 1765
enhancement applied and also stated that it would apply the

same sentence if the Ninth Circuit were to order resentencing.4

[2] The Supreme Court has made clear that the district

court must correctly calculate the recommended Guidelines

sentence and use that recommendation as the “ ‘starting point

and the initial benchmark.’ ” Kimbrough v. United States, 552

U.S. 85, 108 (2007) (quoting Gall v. United States, 552 U.S.

38, 49 (2007)); see also Gall, 552 U.S. at 51 (holding that

improperly calculating the Guidelines range constitutes “significant procedural error”); Carty, 520 F.3d at 991. The

Supreme Court also has emphasized that the recommended

Guidelines range must “be kept in mind throughout the process.” Carty, 520 F.3d at 991; see also Gall, 552 U.S. at 50

n.6 (“[D]istrict courts must begin their analysis with the

Guidelines and remain cognizant of them throughout the sentencing process.”).

[3] A district court must start with the recommended

Guidelines sentence, adjust upward or downward from that

point, and justify the extent of the departure from the Guidelines sentence. Carty, 520 F.3d at 991-92. If it makes a mistake, harmless error review applies. United States v. Ali, 620

F.3d 1062, 1074 (9th Cir. 2010).5

4

In United States v. Menyweather, 447 F.3d 625 (9th Cir. 2006), we

applied harmless error analysis to the district court’s reasons for departing

downward from a Guidelines range. There was no dispute on appeal about

the Guidelines calculation or its correctness, id. at 630, but only about

whether the district gave a proper and adequate explanation for the significant downward departure. Therefore, Menyweather did not decide anything about whether harmless error review is available in the context of an

incorrect Guidelines calculation. It is distinguishable. Regardless of later

developments in the law, we need not revisit Menyweather, to overrule it

or otherwise. 

5For example, harmless error may result if the district court: (1)

acknowledges that the correct Guidelines range is in dispute and performs

his sentencing analysis twice, beginning with both the correct and incorrect range; (2) chooses a within-Guidelines sentence that falls within both

1766 UNITED STATES v. MUNOZ-CAMARENA
[4] In this case, we cannot say that the district court’s

incorrect application of the eight-level enhancement was

harmless. On review of the record, we conclude that, had the

district court started with the correct Guidelines range of 24

to 30 months, rather than 33 to 41 months, it may have arrived

at a different sentence. A district court’s mere statement that

it would impose the same above-Guidelines sentence no matter what the correct calculation cannot, without more, insulate

the sentence from remand, because the court’s analysis did

not flow from an initial determination of the correct Guidelines range. The court must explain, among other things, the

reason for the extent of a variance. Carty, 520 F.3d at 991-92.

The extent necessarily is different when the range is different,

so a one-size-fits-all explanation ordinarily does not suffice.

[5] We find the district court’s explanation here insufficient to explain the extent of the variance from the correct

Guidelines range. We are not convinced that the district court

would impose the same sentence if the correct Guidelines

range was “kept in mind throughout the process,” Carty, 520

F.3d at 991, and a remand for resentencing is therefore

required.

Because we are remanding on the basis of an error in the

Guidelines calculations, we need not reach MunozCamarena’s alternative arguments in support of a remand: that

the district court failed to consider all of the 18 U.S.C.

§ 3553(a) factors and that the 65-month sentence improperly

the incorrect and the correct Guidelines range and explains the chosen sentence adequately; (3) imposes a statutory minimum or maximum and adequately explains why no additional or lesser term of imprisonment is

necessary; or (4) performs the sentencing analysis with respect to an incorrect Guidelines range that overlaps substantially with a correct Guidelines

range such that the explanation for the sentence imposed is sufficient even

as to the correct range. This list is not exhaustive, but is intended merely

to illustrate the general principle that harmless error is possible only where

the requirements of Gall and Carty are met. 

UNITED STATES v. MUNOZ-CAMARENA 1767
took into account the fact that Munoz-Camarena had violated

the terms of his supervised release. See, e.g., United States v.

Forrester, 616 F.3d 929, 950 (9th Cir. 2010). 

SENTENCE VACATED, REMANDED FOR RESENTENCING.

1768 UNITED STATES v. MUNOZ-CAMARENA