United States v. Chavez

46 F. App'x 502

Opinion

MEMORANDUM

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Gustavo Alvarez Chavez appeals the sentence following his guilty plea conviction of two counts of illegal use of a communication facility to facilitate distribution of methamphetamine, in violation of 21 U.S.C. § 843(b). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review de novo the district court’s interpretation of the sentencing guidelines. United States v. Montano, 250 F.3d 709, 712 (9th Cir.2001). We affirm in part, vacate in part, and remand for resentencing.

The district court properly sentenced Chavez to the statutory maximum term of imprisonment, 48 months, on each count of conviction, to run consecutively. See U.S.S.G. § 5G1.2(d).

Chavez contends that the district court erred in concluding that any downward departure would start from the guidelines range of 140-175 months rather than from the statutory maximum of 96 months. Section 5Gl.l(a) of the Sentencing Guidelines states that “[wjhere the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.” Thus, the 96-month statutory maximum is the guideline sentence, from which the district court has discretion to depart. See United States v. Rodriguez, 64 F.3d 638, 642 (11th Cir.1995); U.S.S.G. § 5G1.1 and Commentary.

REVERSED in part, VACATED in part and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.