                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 29 2011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. 10-30353

              Plaintiff - Appellee,              D.C. No. 1:09-cr-00090-EJL-1

  v.
                                                 MEMORANDUM *
FRANCISCO JAVIER RIVERA-SUAZO,
AKA Damien Lopez, AKA Spiderman,

              Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                                                          **
                         Submitted September 27, 2011


Before: HAWKINS, SILVERMAN and W. FLETCHER, Circuit Judges.

       Francisco Javier Rivera-Suazo appeals the 240-month sentence imposed

following his jury conviction of conspiracy to distribute methamphetamine in




        *
             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).
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846. We have jurisdiction

under 28 U.S.C. § 1291, and we vacate the sentence and remand for resentencing.

          As the government concedes, the district court erred when it considered

Rivera-Suazo’s state court conviction in calculating his criminal history instead of

determining that the conviction was relevant conduct. Without the error, the

Guidelines rage should have been 262-327 months, as opposed to 292-365 months.

Under these circumstances, we cannot conclude that the court would have imposed

the same sentence absent the Guidelines error. Accordingly, we vacate Rivera-

Suazo’s sentence 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).

          Because we are remanding on the basis of an error in the Guidelines

calculations, we need not reach Rivera-Suazo’s arguments that the district court

erred by running the instant sentence consecutive to the sentence for the state. See

Munoz-Camarena, 631 F.3d at 1031.

          SENTENCE VACATED and REMANDED.
