FILED

NOT FOR PUBLICATION OCT 20 2014

MOLLY C. DWYER, CLERK

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

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10085

Plaintiff - Appellee, D.C. No. 4:12-cr-01661-JGZ

v.

MEMORANDUM*

NIDIA BERENICE FIGUEROA-

ZENDEJAS,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona John A. Jarvey, District Judge, Presiding**

Submitted October 14, 2014***

Before: LEAVY, GOULD, and BERZON, Circuit Judges.

Nidia Berenice Figueroa-Zendejas appeals from the district court’s judgment

and challenges the 36-month sentence imposed following her guilty-plea

conviction for possession with intent to distribute methamphetamine, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). We have jurisdiction under 28 U.S.C.

§ 1291, and we vacate the sentence and remand for resentencing.

Figueroa-Zendejas contends that the district court committed reversible error by miscalculating the advisory Guidelines range. We review for plain error. See

United States v. Vargem, 747 F.3d 724, 727 (9th Cir. 2014). The government

concedes the Guidelines calculation error, but contends that Figueroa-Zendejas has

not shown that the district court’s error was prejudicial. We disagree. Because the

district court may have imposed a different sentence had it started its analysis with

the correct Guidelines range, we conclude that the court’s error affected Figueroa-

Zendejas’s substantial rights. See id. at 728-29. Accordingly, we vacate the

sentence and remand for resentencing.

In light of our disposition, we do not reach Figueroa-Zendejas’s other

allegations of sentencing error.

VACATED and REMANDED for resentencing.

2 13-10085 United States v. Figueroa-Zendejas, No. 13-10085

LEAVY, Circuit Judge, dissenting:

I respectfully dissent because the error is not one that “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (internal quotation and

citation omitted).

3 13-10085