                                                                                FILED
                            NOT FOR PUBLICATION                                  JAN 22 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 11-50266

              Plaintiff - Appellee,               D.C. No. 2:10-cr-00937-SJO-1

  v.
                                                  MEMORANDUM*
JASON NAGEL DULAY,

              Defendant - Appellant.


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

                      Argued and Submitted December 7, 2012
                               Pasadena, California

Before: IKUTA and NGUYEN, Circuit Judges, and BURNS, District Judge.**

       Jason Dulay appeals the 324-month sentence imposed by the district court

following his guilty plea to possession with intent to distribute at least fifty grams

of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii),


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A), and being a felon in possession of firearms and

ammunition, in violation of 18 U.S.C. § 922(g)(1). Dulay contends that the district

court’s failure to calculate the applicable Sentencing Guidelines range and failure

to explain the extent of any variance between its sentence and the appropriate

Guidelines range constituted non-harmless procedural error. He also argues that

the sentence is substantively unreasonable. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we vacate and remand.

      We generally review sentencing decisions for abuse of discretion. United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). We “must first ensure

that the district court committed no significant procedural error,” Gall v. United

States, 552 U.S. 38, 51 (2007), and only proceed to consider the substantive

reasonableness of a sentence “[i]n the absence of a ‘significant procedural error.’”

United States v. Ellis, 641 F.3d 411, 422 (9th Cir. 2011) (quoting Gall, 552 U.S. at

51). With respect to a claim of procedural error, this court “review[s] the district

court’s interpretation of the Sentencing Guidelines de novo, the district court’s

application of the Sentencing Guidelines to the facts of a case for abuse of

discretion, and the district court’s factual findings for clear error.” United States v.

Grissom, 525 F.3d 691, 696 (9th Cir. 2008). Because Dulay did not object to this


                                           2
procedural error before the district court, we review Dulay’s claim for plain error.

United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009).

      Here, the district court’s failure to calculate the applicable Guidelines range

constituted a “significant procedural error” that was plainly erroneous. See Gall v.

United States, 552 U.S. 38, 49, 50 n.6, 51 (2007) (holding that: despite the

advisory nature of the Sentencing Guidelines, they remain “the starting point and

the initial benchmark” of a district court’s sentencing analysis; the “district court

should begin all sentencing proceedings by correctly calculating the applicable

Guidelines range” and keep that range in mind throughout the sentencing process;

and that “failing to calculate (or improperly calculating) the Guidelines range . . .

or failing to adequately explain the chosen sentence—including an explanation for

any deviation from the Guidelines range[,]” constitutes “significant procedural

error;”. . .); see also Carty, 520 F.3d at 991 (“All sentencing proceedings are to

begin by determining the applicable Guidelines range. The range must be

calculated correctly.”); see also Hammons, 558 F.3d at 1105 (holding that a district

court’s failure to consider the 18 U.S.C. § 3553(a) factors was plain error, relying

on Gall).

      Moreover, because the district court did not calculate the applicable

Guidelines range, it could not adequately explain “the extent of [any] deviation”


                                           3
from that range. Gall, 552 U.S. at 50 (finding it “uncontroversial that a major

departure [from the Guidelines range] should be supported by a more significant

justification than a minor one”); see also United States v. Munoz-Camarena, 631

F.3d 1028, 1031 (9th Cir. 2011) (“The extent [of a variance] necessarily is

different when the range is different, so a one-size-fits-all explanation ordinarily

does not suffice.”).

      The district court’s procedural error was not harmless. Munoz-Camarena,

631 F.3d at 1030 n.5 (explaining that harmless error is rare in Guidelines

calculations and noting that “harmless error is possible only where the

requirements of Gall and Carty are met”). “A district court’s mere statement that it

would impose the same above-Guidelines sentence no matter what the correct

calculation cannot, without more, insulate the sentence from remand, because the

court’s analysis did not flow from an initial determination of the correct Guidelines

range.” Id. at 1031. Further, its prejudicial impact affected Dulay’s substantial

rights and sufficiently impacted the fairness of the proceedings to warrant remand.

See Hammons, 558 F.3d at 1105; Munoz-Camarena, 631 F.3d at 1031 (because

“[w]e are not convinced that the district court would impose the same sentence if

the correct Guidelines range was ‘kept in mind throughout the process,’ . . . a

remand for resentencing is . . . required.” (citing Carty, 520 F.3d at 991)).


                                           4
      Because the district court’s failure to calculate the Guidelines range was

plain error, we need not reach the substantive reasonableness of the district court’s

sentence.

VACATED AND REMANDED.




                                          5
