United States of America v. FRANCISCO JAVIER RIVERA-SUAZO, AKA Damien Lopez, AKA Spiderman

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO JAVIER RIVERA-SUAZO,
AKA Damien Lopez, AKA Spiderman,
Defendant - Appellant.
No. 10-30353
D.C. No. 1:09-cr-00090-EJL-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN and W. FLETCHER, Circuit Judges.
Francisco Javier Rivera-Suazo appeals the 240-month sentence imposed
following his jury conviction of conspiracy to distribute methamphetamine in
FILED
SEP 29 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846. We have jurisdiction
under 28 U.S.C. § 1291, and we vacate the sentence and remand for resentencing.
As the government concedes, the district court erred when it considered
Rivera-Suazo’s state court conviction in calculating his criminal history instead of
determining that the conviction was relevant conduct. Without the error, the
Guidelines rage should have been 262-327 months, as opposed to 292-365 months.
Under these circumstances, we cannot conclude that the court would have imposed
the same sentence absent the Guidelines error. Accordingly, we vacate Rivera-
Suazo’s sentence and remand for resentencing so that the district court's analysis
can proceed from “an initial determination of the correct Guidelines range.”
United States v. Munoz–Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011) (per
curiam); see also United States v. Hammons, 558 F.3d 1100, 1105–06 (9th Cir.
2009) (district court's failure to calculate the correct Guidelines range was plain
error).
Because we are remanding on the basis of an error in the Guidelines
calculations, we need not reach Rivera-Suazo’s arguments that the district court
erred by running the instant sentence consecutive to the sentence for the state. See
Munoz-Camarena, 631 F.3d at 1031.
SENTENCE VACATED and REMANDED.

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