Rivera-Gomez

ORDER

The opinion filed on December 6, 2010 and published at 626 F.3d 1129 , is amended as follows.

The text in footnote 9 appearing on page 1136 should be deleted and replaced with the following language:

Additionally, the concurrence appearing on pages 1136-37 is deleted and replaced by the concurrence attached to this order.

As the deadline for petitions for rehearing and rehearing en banc has passed, no *509 petitions for rehearing or rehearing en banc will be entertained.

IT IS SO ORDERED.

OPINION

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, § lB1.3(a)(l)(A), we vacate the defendant’s sentence and remand for resentencing.

I

Uriel Rivera-Gomez, a…

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 Rivera-Gomez towards the low-end of this new Guidelines range — as it did under its initial higher calculation —…

Daniel J. Broderick, Federal Defender, and Douglas J. Beevers, Assistant Federal Defender, Fresno, CA, for the defendant-appellant Rivera-Gomez.

Lawrence G. Brown, United States Attorney, and Ian L. Garriques, Assistant United States Attorney, Fresno, CA, for plaintiff-appellee the United States.

Before: ALFRED T. GOODWIN, MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge IKUTA; Concurrence by Judge GOODWIN.

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.

Uriel Rivera-Gomez, a Mexican citizen, gained legal status in the United States…