United States of America v. Jason Nagel Dulay

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON NAGEL DULAY,
Defendant - Appellant.
No. 11-50266
D.C. No. 2:10-cr-00937-SJO-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted December 7, 2012
Pasadena, California
Before: IKUTA and NGUYEN, Circuit Judges, and BURNS, District Judge. **
Jason Dulay appeals the 324-month sentence imposed by the district court
following his guilty plea to possession with intent to distribute at least fifty grams
of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii),
FILED
JAN 22 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A), and being a felon in possession of firearms and
ammunition, in violation of 18 U.S.C. § 922(g)(1). Dulay contends that the district
court’s failure to calculate the applicable Sentencing Guidelines range and failure
to explain the extent of any variance between its sentence and the appropriate
Guidelines range constituted non-harmless procedural error. He also argues that
the sentence is substantively unreasonable. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we vacate and remand.
We generally review sentencing decisions for abuse of discretion. United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). We “must first ensure
that the district court committed no significant procedural error,” Gall v. United
States, 552 U.S. 38, 51 (2007), and only proceed to consider the substantive
reasonableness of a sentence “[i]n the absence of a ‘significant procedural error.’”
United States v. Ellis, 641 F.3d 411, 422 (9th Cir. 2011) (quoting Gall, 552 U.S. at
51). With respect to a claim of procedural error, this court “review[s] the district
court’s interpretation of the Sentencing Guidelines de novo, the district court’s
application of the Sentencing Guidelines to the facts of a case for abuse of
discretion, and the district court’s factual findings for clear error.” United States v.
Grissom, 525 F.3d 691, 696 (9th Cir. 2008). Because Dulay did not object to this

-- 2 of 5 --

3
procedural error before the district court, we review Dulay’s claim for plain error.
United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009).
Here, the district court’s failure to calculate the applicable Guidelines range
constituted a “significant procedural error” that was plainly erroneous. See Gall v.
United States, 552 U.S. 38, 49, 50 n.6, 51 (2007) (holding that: despite the
advisory nature of the Sentencing Guidelines, they remain “the starting point and
the initial benchmark” of a district court’s sentencing analysis; the “district court
should begin all sentencing proceedings by correctly calculating the applicable
Guidelines range” and keep that range in mind throughout the sentencing process;
and that “failing to calculate (or improperly calculating) the Guidelines range . . .
or failing to adequately explain the chosen sentence—including an explanation for
any deviation from the Guidelines range[,]” constitutes “significant procedural
error;”. . .); see also Carty, 520 F.3d at 991 (“All sentencing proceedings are to
begin by determining the applicable Guidelines range. The range must be
calculated correctly.”); see also Hammons, 558 F.3d at 1105 (holding that a district
court’s failure to consider the 18 U.S.C. § 3553(a) factors was plain error, relying
on Gall).
Moreover, because the district court did not calculate the applicable
Guidelines range, it could not adequately explain “the extent of [any] deviation”

-- 3 of 5 --

4
from that range. Gall, 552 U.S. at 50 (finding it “uncontroversial that a major
departure [from the Guidelines range] should be supported by a more significant
justification than a minor one”); see also United States v. Munoz-Camarena, 631
F.3d 1028, 1031 (9th Cir. 2011) (“The extent [of a variance] necessarily is
different when the range is different, so a one-size-fits-all explanation ordinarily
does not suffice.”).
The district court’s procedural error was not harmless. Munoz-Camarena,
631 F.3d at 1030 n.5 (explaining that harmless error is rare in Guidelines
calculations and noting that “harmless error is possible only where the
requirements of Gall and Carty are met”). “A district court’s mere statement that it
would impose the same above-Guidelines sentence no matter what the correct
calculation cannot, without more, insulate the sentence from remand, because the
court’s analysis did not flow from an initial determination of the correct Guidelines
range.” Id. at 1031. Further, its prejudicial impact affected Dulay’s substantial
rights and sufficiently impacted the fairness of the proceedings to warrant remand.
See Hammons, 558 F.3d at 1105; Munoz-Camarena, 631 F.3d at 1031 (because
“[w]e are not convinced that the district court would impose the same sentence if
the correct Guidelines range was ‘kept in mind throughout the process,’ . . . a
remand for resentencing is . . . required.” (citing Carty, 520 F.3d at 991)).

-- 4 of 5 --

5
Because the district court’s failure to calculate the Guidelines range was
plain error, we need not reach the substantive reasonableness of the district court’s
sentence.
VACATED AND REMANDED.

-- 5 of 5 --