                                                                           FILED
                            NOT FOR PUBLICATION                            MAY 20 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30175

               Plaintiff - Appellee,             D.C. No. 1:12-cr-00061-SEH

  v.
                                                 MEMORANDUM*
FABIO NOEL-RODRIGUEZ,

               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                              Submitted May 13, 2014**

Before:        CLIFTON, BEA, and WATFORD, Circuit Judges.

       Fabio Noel-Rodriguez appeals from the district court’s judgment and

challenges the 148-month sentence imposed following his guilty-plea conviction

for possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and

          *
             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).
remand for resentencing.

      Noel-Rodriguez contends that the district court incorrectly calculated the

advisory Guidelines range and imposed an unreasonable sentence. The

government contends that this appeal should be dismissed based on a sentencing

appeal waiver. We review de novo whether Noel-Rodriguez has waived his right

to appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).

Because the district court made no reference to the sentencing appeal waiver at the

plea hearing, we cannot enforce the waiver. See United States v. Arellano-

Gallegos, 387 F.3d 794, 797 (9th Cir. 2004).

      Because Noel-Rodriguez did not raise any objection to the Guidelines

calculation before the district court, we review for plain error. See United States v.

Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir. 2013). Although the district court

determined that Noel-Rodriguez was a minor participant in the offense and

properly applied a three-level reduction to the base offense level under U.S.S.G.

§ 2D1.1(a)(5), the court failed to apply the two-level role reduction under U.S.S.G.

§ 3B1.2(b). Incorrect calculation of a defendant’s Guidelines range is a significant

procedural error, and “when a sentencing judge incorrectly calculates the

Guidelines range, potentially resulting in the imposition of a greater sentence, the

error affects the defendant’s substantial rights and ‘the fairness of the judicial


                                            2                                    13-30175
proceedings.’” Bonilla-Guizar, 729 F.3d at 1188 (quoting United States v.

Castillo-Marin, 684 F.3d 914, 927 (9th Cir. 2012)). Accordingly, we vacate Noel-

Rodriguez’s sentence and remand for resentencing. See id. at 1189.

      In light of this disposition, we decline to reach Noel-Rodriguez’s remaining

contentions.

      VACATED and REMANDED for resentencing.




                                         3                                   13-30175
