United States v. Fernando Murguia-Ochoa

FILED

NOT FOR PUBLICATION AUG 02 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10022

Plaintiff - Appellee, DC No. 2:08 cr-0417 MCE

v.

MEMORANDUM*

FERNANDO MURGUIA-OCHOA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding

Argued and Submitted June 10, 2013 San Francisco, California

Before: TASHIMA and BYBEE, Circuit Judges, and STAFFORD, Senior District Judge.**

Appellant Fernando Murguia-Ochoa (“Murguia”) appeals his sentence

following his plea of guilty to two counts of drug trafficking, in violation of

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District of Florida, sitting by designation. U.S.C. §§ 841(a)(1) and 846. The district court sentenced Murguia to 292 months

in prison, representing the low end of the…

MEMORANDUM **

Appellant Fernando Murguia-Ochoa (“Murguia”) appeals his sentence following *697 his plea of guilty to two counts of drug trafficking, in violation of 21 U.S.C. §§ 841 (a)(1) and 846. The district court sentenced Murguia to 292 months in prison, representing the low end of the Sentencing Guidelines range. On appeal, Murguia contends that the district court erred in its Guidelines calculations. Specifically, he contends that the district court erred in adding criminal history points based on a 1989 California conviction for assault with a firearm, and that the district court further erred by treating the 1989 conviction as a predicate felony for the career offender enhancement under U.S.S.G. § 4B1.1. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 . Because the district court did not have sufficient evidence to treat the 1989 conviction as a “crime of violence” for purposes of the career offender enhancement, we vacate the sentence and remand for further proceedings.

1. The district court did not err in adding three criminal history points in connection with the 1989 conviction. Murguia contends that the conviction is ineligible for inclusion in the Guidelines…

concurring in part and dissenting in part.

To the extent the majority finds that the district court’s plain error requires us to vacate and remand for further proceedings, I must respectfully dissent. While I agree that the district court committed plain error, Murguia-Ochoa is not thereby entitled to relief unless he satisfies his burden to show that his substantial rights were affected by that error. United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). He must, in other words, show a reasonable probability that, but for the error, he would have obtained a lesser sentence. United States v. Joseph, 716 F.3d 1273, 1280 (9th Cir.2013). Because I find that he has not made such a showing, I would affirm.