                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 27 2010

                                                                       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. 09-50148

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00978-ODW-1

  v.
                                                 MEMORANDUM *
JOSE RAUL APARICIO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                      Argued and Submitted February 5, 2010
                               Pasadena, California

Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.




       José Raul Aparico appeals the eighty-seven month sentence imposed after

his conviction under 21 U.S.C. § 841(c)(2). The parties are familiar with the facts

of this case, which we repeat here only to the extent necessary to explain our



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and

we reverse and remand for resentencing.

      When reviewing a sentencing decision, we must first consider whether the

district court committed a procedural error. United States v. Carty, 520 F.3d 984,

993 (9th Cir.) (en banc), cert. denied, 128 S.Ct. 2491 (2008). “All sentencing

proceedings are to begin by determining the applicable Guidelines range. The

range must be calculated correctly. In this sense, the Guidelines are the starting

point and the initial benchmark.” Id. at 991 (internal quotation marks omitted).

Here, the district court selected an eighty-seven month sentence before calculating

the proper guidelines range of fifty-one to sixty-three months. Having selected a

sentence without first calculating the proper guidelines range, the district court

committed a procedural error.

      A district “judge must explain why he imposes a sentence outside the

Guidelines.” Id. at 992. It is procedural error to fail to adequately explain “any

deviation” from the guidelines range. Id. at 993. The explanation must be

sufficient “to permit meaningful appellate review.” Id. at 992. Here, the district

court imposed an eighty-seven month sentence, two years more than the high end

of the guidelines range. The court’s brief explanation that “nothing had changed”

does not explain adequately the upward departure, especially in light of the district


                                           2
court’s prior emphasis on mitigating factors. Failure to adequately explain the

above-guidelines sentence constitutes procedural error.1

      REVERSED and REMANDED for resentencing.




      1
        Because we remand for resentencing due to procedural error, we do not
address the substantive reasonableness of the eighty-seven month sentence.

                                         3
