USA V. NIDIA FIGUEROA-ZENDEJAS, No. 13-10085 (9th Cir. 2014)

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FILED OCT 20 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-10085 D.C. No. 4:12-cr-01661-JGZ v. MEMORANDUM* NIDIA BERENICE FIGUEROAZENDEJAS, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona John A. Jarvey, District Judge, Presiding** Submitted October 14, 2014*** Before: LEAVY, GOULD, and BERZON, Circuit Judges. Nidia Berenice Figueroa-Zendejas appeals from the district court s judgment and challenges the 36-month sentence imposed following her guilty-plea conviction for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). We have jurisdiction under 28 U.S.C. § 1291, and we vacate the sentence and remand for resentencing. Figueroa-Zendejas contends that the district court committed reversible error by miscalculating the advisory Guidelines range. We review for plain error. See United States v. Vargem, 747 F.3d 724, 727 (9th Cir. 2014). The government concedes the Guidelines calculation error, but contends that Figueroa-Zendejas has not shown that the district court s error was prejudicial. We disagree. Because the district court may have imposed a different sentence had it started its analysis with the correct Guidelines range, we conclude that the court s error affected FigueroaZendejas s substantial rights. See id. at 728-29. Accordingly, we vacate the sentence and remand for resentencing. In light of our disposition, we do not reach Figueroa-Zendejas s other allegations of sentencing error. VACATED and REMANDED for resentencing. 2 13-10085 United States v. Figueroa-Zendejas, No. 13-10085 LEAVY, Circuit Judge, dissenting: I respectfully dissent because the error is not one that seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (internal quotation and citation omitted). 3 13-10085

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