Davis

dissenting in part and concurring in the judgment.

I agree that resentencing is warranted but disagree that the district court’s calculation of Davis’s criminal history category should be disturbed. Davis did not object to the PSR’s calculation of Criminal History Category II; he affirmatively embraced that calculation in his sentencing memorandum; and failed to object at the sentencing hearing, despite specifically discussing his criminal history. Under these circumstances, I believe the objection is waived, not forfeited. See, e.g., United States v. Hernandez-Ramirez, 254 F.3d 841, 844-45 (9th Cir.2001) (holding defendant waived ability to contest the district court’s increasing of his criminal history score by two points under U.S.S.G. § 4Al.l(d) because he did not challenge the calculation in district court); United States v. Gaither, 245 F.3d 1064, 1069 (9th Cir.2001) (holding that defendant waived right to challenge two-level obstruction of justice enhancement where he expressly agreed with the PSR recommendation before the district court); United States v. Flores, 172 F.3d 695, 701 (9th Cir.1999) (holding that defendant waived right to challenge leader enhancement under…

MEMORANDUM *

Tyrone Davis appeals the sentence imposed by the district court for his role in a drug conspiracy. Davis and the government entered into a plea agreement pursuant to Fed.R.Crim.P. 11(c)(1)(C). The parties stipulated that an eighteen-year sentence was appropriate. 1 The district court accepted Davis’s guilty plea and deferred ruling on the plea agreement until it reviewed the Presentence Report (“PSR”). The PSR found that the advisory Guidelines range for Davis’s offenses was thirty years to life in prison. Nevertheless, it recommended a ten-year sentence for parity with a sentence received by one of Davis’s co-defendants. Davis’s counsel withdrew. At sentencing, Davis’s replacement counsel urged the court to impose a fourteen-year sentence because Davis was not an “organizer or leader” of the conspiracy and because the stipulated sentence would be greater than necessary to satisfy the 18 U.S.C. § 3553 (a) sentencing factors. The district court rejected Davis’s arguments, accepted the plea agreement, and imposed an eighteen-year sentence. Davis appealed. We vacate Davis’s sentence and remand for resentencing.

We review all sentencing decisions for an abuse of…