U.S. v. Herrera-Chavez

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Fernando HERRERA-CHAVEZ…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 21, 2000

232 F.3d 897 (9th Cir. 2000)

Opinion

232 F.3d 897 (9th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Fernando HERRERA-CHAVEZ, Defendant-Appellant. No. 96-10410. United States Court of Appeals, Ninth Circuit July 21, 2000

Submitted June 15, 2000 ²

2 The panel unanimously finds this case suitable for decision without oral argument. See Federal Rules of Appellate Procedure 34(a)(2).

D.C. No. CR-96-0135-EHC

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of Arizona Earl H. Carroll, District Judge, Presiding.

Before SNEED, KLEINFELD, and TASHIMA, Circuit Judges.

MEMORANDUM ¹

1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

The parties are familiar with the factual and procedural history of the case and, therefore, we will not recite it here. We vacate the judgment of the district court and remand for re-sentencing.

We review the application of the Sentencing Guidelines de novo. See United States v. Kohl, 972 F.2d 294, 297 (9th Cir.1992). The Sentencing Guidelines in effect at the time Herrera-Chavez was sentenced were ambiguous with regard to whether a pre-1990 aggravated assault conviction could serve as the basis for a sixteen-level enhancement under § 2L1.2(b). See U.S.S.G. § 1B1.11 (court shall use manual in effect at the time the defendant was sentenced); United States v. Fuentes-Barahona, 111 F.3d 651 (9th Cir.1996). We therefore apply the rule of lenity and conclude that the district court erred in sentencing Herrera-Chavez according to a guideline range calculated with a sixteen-level enhancement for Herrera-Chavez's 1989 aggravated assault conviction. See id.

The government contends that the error was harmless because Herrera-Chavez's prior convictions for possession of controlled substances could serve as the basis for a sixteen-level sentence enhancement under § 2L1.2(b)(2). Perhaps this is so, but the district court is better situated to decide whether to apply the enhancement based on these convictions. Accordingly, we vacate the district court's sixteen-level enhancement of Herrera-Chavez's sentence under U.S.S.G. § 2L1.2(b)(2) and remand for re-sentencing.

VACATED AND REMANDED.