United States v. Fabio Noel-Rodriguez

574 F. App'x 748

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 20, 2014
• Docket: 13-30175
• Status: Unpublished

Opinion

MEMORANDUM **

Fabio Noel-Rodriguez appeals from the district court’s judgment and challenges the 148-month sentence imposed following his guilty-plea conviction for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Noel-Rodriguez contends that the district court incorrectly calculated the advisory Guidelines range and imposed an unreasonable sentence. The government contends that this appeal should be dismissed based on a sentencing appeal waiver. We review de novo whether Noel-Rodriguez has waived his right to appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir.2009). Because the district court made no reference to the sentencing appeal waiver at the plea hearing, we cannot enforce the waiver. See United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir.2004).

Because Noel-Rodriguez did not raise any objection to the Guidelines calculation before the district court, we review for plain error. See United States v. Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir. 2013). Although the district court determined that Noel-Rodriguez was a minor participant in the offense and properly applied a three-level reduction to the base offense level under U.S.S.G. § 2D1.1(a)(5), the court failed to apply the two-level role reduction under U.S.S.G. § 3B1.2(b). Incorrect calculation of a defendant’s Guidelines range is a significant procedural error, and “when a sentencing judge incorrectly calculates the Guidelines range, potentially resulting in the imposition of a greater sentence, the error affects the defendant’s substantial rights and ‘the fairness of the judicial proceedings.’” Bonilla-Guizar, 729 F.3d at 1188 (quoting United States v. Castillo-Marin, 684 F.3d 914, 927 (9th Cir.2012)). Accordingly, we vacate Noel-Rodriguez’s sentence and remand for re-sentencing. See id. at 1189.

In light of this disposition, we decline to reach Noel-Rodriguez’s remaining contentions.

VACATED and REMANDED for re-sentencing.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.