                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 12 2013

                                                                        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. 11-10615

              Plaintiff - Appellee,              D.C. No. 2:09-cr-462-MCE

  v.
                                                 MEMORANDUM *
GUADALUPE MARIE CARRILLO-
HERNANDEZ,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                      Argued & Submitted December 4, 2012
                            San Francisco, California

Before: CUDAHY,** TROTT, and RAWLINSON, Circuit Judges.

       This case concerns U.S.S.G. § 2L1.2(b)(1)(A) and a probation revocation

sentence served after the deportation of the defendant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Richard D. Cudahy, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
       Guadalupe Marie Carrillo-Hernandez was convicted of drug trafficking and

sentenced to 180 days in jail and a three-year probation. She was deported to Mexico.

She illegally reentered the United States and thereby violated probation. She was

sentenced to two years in prison and she served that sentence. Later, she was indicted

for being a deported alien found in the United States. 8 U.S.C. §§ 1326(a), (b)(2).

The probation office issued a presentence report, applying a 16-level enhancement,

under U.S.S.G. § 2L1.2(b)(1)(A). (“[T]he defendant previously was deported . . .

after . . . a conviction for a felony that is . . . a drug trafficking offense for which the

sentence imposed exceeded 13 months.”). The district court adopted the probation

officer’s report and applied the 16-level enhancement. Carrillo-Hernandez appeals.

   The application of U.S.S.G. § 2L1.2(b)(1)(A) has since been clarified by

amendment, U.S.S.G. § 2L1.2 cmt. app. n.1(B)(vii) (2012), and by United States v.

Catalan, 701 F.3d 331 (9th Cir. 2012) (per curiam). As clarified, “sentence imposed”

does not include a probation revocation sentence served after deportation. See

Catalan, 701 F.3d at 333. Accordingly, the district court erred in applying a 16-level

enhancement.

   When a district court makes a mistake in calculating the applicable guidelines

range, this court applies harmless error review. United States v. Munoz-Camarena,

631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam). An error is harmless if there is no


                                             2
evidence that the errors “if changed, would result in a shorter sentence.” United States

v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).

   In this case, the calculated guidelines range was 57 to 71 months. The correct range

was 37 to 46 months. The district court sentenced Carrillo-Hernandez to 46 months.

The district court noted that the guidelines were advisory and fashioned a sentence

which it believed was fair, just and reasonable.

   Though the district court provided a thoughtful and thorough justification for the

sentence imposed, it is possible that court may have issued a lower sentence had the

court started its analysis with the correct 37 to 46 month guideline range. We are

unable to conclude that the district court’s error was harmless. Accordingly, we vacate

the sentence and remand for further consideration in light of the correct application

of U.S.S.G. § 2L1.2(b)(1)(A).

   VACATED AND REMANDED.




                                           3
                                                                           FILED
U.S. v. Carrillo-Hernandez, Case No. 11-10615                               MAR 12 2013
Rawlinson, Circuit Judge, concurring:
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

      I concur in the judgment vacating and remanding for reconsideration of the

sentence in view of the clarification of the applicable guideline by the United

States Sentencing Commission. I express no view on whether the sentence

imposed should be changed in any way.
