United States of America v. Guadalupe Marie Carrillo- Hernandez

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Richard D. Cudahy, Senior Circuit Judge for the U.S.**
Court of Appeals for the Seventh Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GUADALUPE MARIE CARRILLO-
HERNANDEZ,
Defendant - Appellant.
No. 11-10615
D.C. No. 2:09-cr-462-MCE
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued & Submitted December 4, 2012
San Francisco, California
Before: CUDAHY, TROTT, and RAWLINSON, Circuit Judges.**
This case concerns U.S.S.G. § 2L1.2(b)(1)(A) and a probation revocation
sentence served after the deportation of the defendant.
FILED
MAR 12 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Guadalupe Marie Carrillo-Hernandez was convicted of drug trafficking and
sentenced to 180 days in jail and a three-year probation. She was deported to Mexico.
She illegally reentered the United States and thereby violated probation. She was
sentenced to two years in prison and she served that sentence. Later, she was indicted
for being a deported alien found in the United States. 8 U.S.C. §§ 1326(a), (b)(2).
The probation office issued a presentence report, applying a 16-level enhancement,
under U.S.S.G. § 2L1.2(b)(1)(A). (“[T]he defendant previously was deported . . .
after . . . a conviction for a felony that is . . . a drug trafficking offense for which the
sentence imposed exceeded 13 months.”). The district court adopted the probation
officer’s report and applied the 16-level enhancement. Carrillo-Hernandez appeals.
The application of U.S.S.G. § 2L1.2(b)(1)(A) has since been clarified by
amendment, U.S.S.G. § 2L1.2 cmt. app. n.1(B)(vii) (2012), and by United States v.
Catalan, 701 F.3d 331 (9th Cir. 2012) (per curiam). As clarified, “sentence imposed”
does not include a probation revocation sentence served after deportation. See
Catalan, 701 F.3d at 333. Accordingly, the district court erred in applying a 16-level
enhancement.
When a district court makes a mistake in calculating the applicable guidelines
range, this court applies harmless error review. United States v. Munoz-Camarena,
631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam). An error is harmless if there is no

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evidence that the errors “if changed, would result in a shorter sentence.” United States
v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).
In this case, the calculated guidelines range was 57 to 71 months. The correct range
was 37 to 46 months. The district court sentenced Carrillo-Hernandez to 46 months.
The district court noted that the guidelines were advisory and fashioned a sentence
which it believed was fair, just and reasonable.
Though the district court provided a thoughtful and thorough justification for the
sentence imposed, it is possible that court may have issued a lower sentence had the
court started its analysis with the correct 37 to 46 month guideline range. We are
unable to conclude that the district court’s error was harmless. Accordingly, we vacate
the sentence and remand for further consideration in light of the correct application
of U.S.S.G. § 2L1.2(b)(1)(A).
VACATED AND REMANDED.

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U.S. v. Carrillo-Hernandez, Case No. 11-10615
Rawlinson, Circuit Judge, concurring:
I concur in the judgment vacating and remanding for reconsideration of the
sentence in view of the clarification of the applicable guideline by the United
States Sentencing Commission. I express no view on whether the sentence
imposed should be changed in any way.
FILED
MAR 12 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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