                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 09 2011

                                                                        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. 10-50380

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00445-DSF-50

  v.
                                                 MEMORANDUM *
FRANKIE DELAROSA MURGUIA, Jr.,
a.k.a. Hopper, a.k.a. Papas,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Frankie DeLaRosa Murguia, Jr., appeals from the 15-year supervised release

term imposed following his guilty-plea conviction for Racketeer Influenced and

Corrupt Organizations conspiracy, in violation of 18 U.S.C. § 1962(d), 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).
conspiracy to possess with intent to distribute methamphetamine, in violation of 21

U.S.C. §§ 841(a) and 846. We have jurisdiction under 28 U.S.C. § 1291, and we

vacate the supervised release term and remand for resentencing.

      In imposing sentence, the district court erroneously calculated the

Guidelines range for the supervised release term as three years to life. As the

government concedes, the Guidelines range is instead three to five years. See

U.S.S.G. § 5D1.2(a)(1). The court imposed a supervised release term three times

greater than the high-end of that range, and far in excess of Murguia’s 30-month

custodial sentence. Under these circumstances, we cannot conclude that the court

would have imposed the same sentence absent the Guidelines error. Accordingly,

we vacate Murguia’s supervised release term and remand for resentencing so that

the district court’s analysis can proceed from “an initial determination of the

correct Guidelines range.” United States v. Munoz-Camarena, 631 F.3d 1028,

1031 (9th Cir. 2011) (per curiam); see also United States v. Hammons, 558 F.3d

1100, 1105-06 (9th Cir. 2009) (district court’s failure to calculate the correct

Guidelines range was plain error).

      VACATED in part and REMANDED.




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