                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 15 2013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. 11-50090

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00688-AHM-4

  v.
                                                 MEMORANDUM *
JOSE LEON, AKA Nene,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                      Argued and Submitted October 11, 2012
                               Pasadena, California

Before: EBEL **, WARDLAW, and NGUYEN, Circuit Judges.

       Jose Leon appeals the sentence imposed by the district court following his

guilty plea to one count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d),

and one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
               The Honorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
§ 846. Because the district court procedurally erred by incorrectly calculating the

guideline range, see Gall v. United States, 552 U.S. 38, 51 (2007); United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc), we vacate Leon’s sentence and

remand to the district court for resentencing.

      The district court counted a 2003 conviction in Leon’s criminal history score

under Application Note 4 to U.S.S.G. § 2E1.1, which instructs courts to count

certain RICO predicate acts in calculating the criminal history score. Based on an

offense level of 31 and a criminal history category of III, the district court arrived

at an advisory sentencing range of 135 to 168 months. The court imposed a

sentence of 105 months imprisonment for each count, to be served concurrently,

reducing the 144-month sentence it otherwise would have pronounced by the 39

months that Leon had already served in a related state case.

      The district court committed procedural error by incorrectly calculating the

guideline range for the drug conspiracy count. See Gall, 552 U.S. at 51; Carty, 520

F.3d at 993. The 2003 conviction should not have been included in the criminal

history score for the drug conspiracy count under the generally applicable rule,

U.S.S.G. § 4A1.2(a)(1), because the conduct underlying the conviction was

charged and pleaded to as part of the drug conspiracy count. Because calculating a

single guideline range that is correct as to both counts is impossible in Leon’s case,


                                           2
the district court should have independently calculated the applicable guideline

range for each separate count of conviction, in accordance with Application Note 4

to U.S.S.G. § 2E1.1 and U.S.S.G. § 4A1.2(a)(1), respectively. For each of the

counts of conviction, Leon’s offense level remains the same, at 31, as stipulated by

the parties in the plea agreement. For the RICO conspiracy count, the correct

criminal history category is III, resulting in guideline range of 135 to 168 months.

See U.S.S.G. Ch. 5, Pt. A. For the drug conspiracy count, the correct criminal

history category is II, resulting in a guideline range of 121 to 151 months. See id.

      In this case, we cannot conclude that the district court’s incorrect calculation

of the guideline range for the drug conspiracy count was harmless. See United

States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011) (per curiam)

(error is not harmless where the district court may have imposed a different

sentence had it started with the correct guideline range); see also United States v.

Hammons, 558 F.3d 1100, 1106 (9th Cir. 2009); United States v. Zalapa, 509 F.3d

1060, 1064-65 (9th Cir. 2007). After separately calculating the guideline ranges

for each count of conviction, the district court may impose concurrent sentences,

taking into account the 18 U.S.C. § 3553(a) sentencing factors in arriving at each

sentence. In this particular case, the sentence previously selected by the district




                                           3
court falls easily within the applicable guideline range for each count of

conviction.

      VACATED and REMANDED.




                                          4
                                                                              FILED
U.S. v. Leon, No. 11-50090                                                     MAR 15 2013

                                                                          MOLLY C. DWYER, CLERK
NGUYEN, Circuit Judge, dissenting:                                          U .S. C O U R T OF APPE ALS




      Leon’s guilty plea to RICO conspiracy requires the district court to count his

2003 conviction as a “prior sentence” for purposes of calculating his criminal

history. U.S. Sentencing Guidelines Manual § 2E1.1, cmt. n.4 (2011). The

majority instructs the district court to calculate a separate criminal history score

with respect to Leon’s drug distribution conspiracy conviction, excluding his 2003

conviction from the calculation. This approach results in two distinct criminal

history categories and two separate guidelines ranges for the same defendant.

Because the majority’s decision contravenes the plain language and basic structure

of the sentencing guidelines, I respectfully dissent.

      U.S.S.G. § 4A1.2 provides general definitions and instructions for

computing a defendant’s criminal history. Generally, only a sentence imposed for

conduct that is not part of the instant offense may be counted as a “prior sentence.”

Id. § 4A1.2(a)(1). However, RICO charges are treated differently. Application

Note 4 to section 2E1.1 plainly requires that conduct charged as part of a “pattern

of racketeering activity” in a RICO conviction be “treat[ed] as a prior sentence

under § 4A1.2(a)(1) and not part of the instant [RICO] offense[,]” even if the

defendant has been previously sentenced for that same conduct. Id. § 2E1.1, cmt.


                                      Page 1 of 4
n.4. The plain language of this provision—and its specific reference to

§ 4A1.2(a)(1)—make clear the Sentencing Commission’s intent to carve out an

exception in cases involving a RICO conviction.1

      Further, allowing the RICO conviction to drive the computation of Leon’s

criminal history score, despite the fact of his second conviction for drug

distribution conspiracy, is consistent with the basic structure of the guidelines. The

guidelines not only provide a detailed mechanism for grouping multiple counts into

a single offense level, see id., Ch. 3, pt. D, but also provide a specific methodology

for grouping all criminal conduct into a single criminal history category, see id.,

Ch. 4, pt. A. This methodology calls for the computation of a defendant’s total

criminal history points based on the seriousness of his prior criminal behavior. See

id. § 4A1.1(a)–(e). Under the sentencing guidelines’ structure, once the court

calculates a single offense level and a single criminal history category, it would use

the sentencing table to arrive at a single advisory guidelines range.

      The district court correctly calculated the guidelines range for Leon.

Applying Application Note 4, the district court assessed 3 points for Leon’s 2003

conviction because the conduct that led to that conviction was charged as a


      1
         Application Note 4 acknowledges that an over-count of a defendant’s
criminal history, that is, an “anomalous result in a particular case,” may occur. If
so, “a guideline departure may be warranted.” Id.

                                     Page 2 of 4
predicate act in his RICO conspiracy. The fact that Leon was also convicted of a

non-RICO count should not make any difference in the criminal history calculus,

because Leon can only have one criminal history. The more specific provision of

the guidelines—Application Note 4—trumps the more general language in Section

4A1.2(a)(1). See Bloate v. United States, 130 S. Ct. 1345, 1354 (2010) (stating

that a “specific provision . . . ‘controls one of more general application’”). Further,

where two provisions “are capable of co-existence,” the court must give effect to

both. Morton v. Mancari, 417 U.S. 535, 551 (1974). Construing Application Note

4 as an exception to § 4A1.2(a)(1) is the only way to achieve a single criminal

history category in Leon’s case without nullifying Note 4.

      The majority instructs the district court to calculate two separate guidelines

ranges, 135 to 168 months for the RICO conspiracy count, and 121 to 151 months

for the non-RICO conspiracy count. Maj. Op. 3. The majority then states that “the

district court may impose concurrent sentences[.]” Id. (emphasis added.) But does

this mean that the district court also may impose consecutive sentences if

warranted? The majority doesn’t say. Certainly, nothing in the guidelines or

elsewhere supports vesting the district court with such discretion. This lack of

clarity highlights the error of the majority’s analysis.

      For these reasons, I would affirm the district court’s calculation of Leon’s


                                      Page 3 of 4
criminal history.




                    Page 4 of 4
