Mendoza-Fernandez

Defendant contends the district court misinterpreted the United States Sentencing Commission’s Guidelines Manual and applied the wrong guideline. We agree, and for the reasons stated below we vacate Defendant’s sentence and remand for resentencing.

I. BACKGROUND

Not many of us carry around $51,000 in cash, but Alfonso Mendoza-Fernandez was doing so on August 5, 1992. As Fernandez prepared to board a flight to Mexico from the Los Angeles International Airport, he was stopped by an inspector for the United States Customs Service. The inspector was conducting what the government terms “an *816 outbound currency examination.” In other words, he was checking passengers to see how much money they were carrying.

Speaking in English, the inspector informed Mendoza-Fernandez it was legal to transport money out of the country but that Mendoza-Fernandez must tell the inspector if he was carrying more than $10,000 in cash or checks. Mendoza-Fernandez stated he understood the law. The inspector then asked Mendoza-Fernandez how much money he was carrying and Mendoza-Fernandez responded that he had approximately five to six thousand dollars in his boot, wallet, and pocket. At the inspector’s…

dissenting:

I respectfully dissent for the simple reason that Mendoza-Fernandez never argued — either in the district court or on appeal — that U.S.S.G. § 2T3.1 was the Guidelines section most applicable to the offense for which he was convicted. Mendoza-Fernandez’s narrow contention was that the district court *819 incorrectly sentenced him pursuant to U.S.S.G. § 2S1.4, rather than under the more appropriate U.S.S.G. § 2F1.1. As United States v. Carillo-Hernandez, 963 F.2d 1316 (9th Cir.1992), clearly states that “U.S.S.G. § 2F1.1 ... is inapplicable” to convictions for making a false statement to a United States Customs official in violation of 18 U.S.C. § 1001 , id. at 1317 , I believe that we must affirm the judgment of the district court.