United States v. Francisco Rivera-Suazo

MEMORANDUM

Francisco Javier Rivera-Suazo appeals the 240-month sentence imposed following his jury conviction of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(A) and 846. We have jurisdiction under 28 U.S.C. § 1291 , and we vacate the sentence and remand for resentencing.

As the government concedes, the district court erred when it considered Rivera-Suazo’s state court conviction in calculating his criminal history instead of determining that the conviction was relevant conduct. Without the error, the Guidelines rage should have been 262-327 months, as opposed to 292-365 months. Under these circumstances, we cannot conclude that the court would have imposed the same sentence absent the Guidelines error. Accordingly, we vacate Rivera-Suazo’s sentence and remand for resen-tencing so that the district court’s analysis can proceed from “an initial determination of the correct Guidelines range.” United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir.2011) (per curiam); see also United States v. Hammons, 558 F.3d 1100, 1105-06 (9th Cir.2009) (district court’s failure to calculate the correct Guidelines range was plain…