United States v. Jose Aparicio

FILED
NOT FOR PUBLICATION MAY 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50148
Plaintiff - Appellee, D.C. No. 2:08-cr-00978-ODW-1
v.
MEMORANDUM *
JOSE RAUL APARICIO,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted February 5, 2010
Pasadena, California
Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.
José Raul Aparico appeals the eighty-seven month sentence imposed after
his conviction under 21 U.S.C. § 841(c)(2). The parties are familiar with the facts
of this case, which we repeat here only to the extent necessary to explain our
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and
we reverse and remand for resentencing.
When reviewing a sentencing decision, we must first consider whether the
district court committed a procedural error. United States v. Carty, 520 F.3d 984,
993 (9th Cir.) (en banc), cert. denied, 128 S.Ct. 2491 (2008). “All sentencing
proceedings are to begin by determining the applicable Guidelines range. The
range must be calculated correctly. In this sense, the Guidelines are the starting
point and the initial benchmark.” Id. at 991 (internal quotation marks omitted).
Here, the district court selected an eighty-seven month sentence before calculating
the proper guidelines range of fifty-one to sixty-three months. Having selected a
sentence without first calculating the proper guidelines range, the district court
committed a procedural error.
A district “judge must explain why he imposes a sentence outside the
Guidelines.” Id. at 992. It is procedural error to fail to adequately explain “any
deviation” from the guidelines range. Id. at 993. The explanation must be
sufficient “to permit meaningful appellate review.” Id. at 992. Here, the district
court imposed an eighty-seven month sentence, two years more than the high end
of the guidelines range. The court’s brief explanation that “nothing had changed”
does not explain adequately the upward departure, especially in light of the district
2
court’s prior emphasis on mitigating factors. Failure to adequately explain the
above-guidelines sentence constitutes procedural error.1
REVERSED and REMANDED for resentencing.
1
Because we remand for resentencing due to procedural error, we do not
address the substantive reasonableness of the eighty-seven month sentence.
3