                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-4781


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

MARTIN CARBAJAL-TAFOLLA, a/k/a      Marcellino Carbajal-Vargas,
a/k/a Jabier Mendoza-Luna,

                 Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00077-TDS-1)


Submitted:   May 27, 2014                      Decided:    June 12, 2014


Before KEENAN    and   WYNN,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant   Federal   Public   Defender,  Winston-Salem,   North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Pursuant to a written plea agreement, Martin Carbajal-

Tafolla pled guilty to possession of firearms by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012)

(Count       One),    unauthorized     illegal    reentry    by     an    aggravated

felon, in violation of 8 U.S.C. § 1326(a), (b)(2) (2012) (Count

Three), and possession of counterfeit alien registration receipt

cards, in violation of 18 U.S.C. § 1546(a) (2012) (Count Four).

The    district       court    sentenced    Carbajal-Tafolla        to    forty-five

months in prison.          Carbajal-Tafolla appeals, contending that the

district      court    committed     procedural    error    in     determining     the

base       offense    level    for   his   § 922(g)    offense 1    and    that    his

sentence is substantively unreasonable.                  For the reasons that

follow,      we   vacate      Carbajal-Tafolla’s      sentence     and    remand   for

resentencing.

               We review a sentence for reasonableness, applying an

abuse of discretion standard.              Gall v. United States, 552 U.S.

38, 51 (2007).          First, we examine the sentence for significant

procedural error, such as improperly calculating the Sentencing

       1
       For Guidelines calculation purposes, the district court
grouped Counts Three and Four (“Group One”) separately from the
§ 922(g) count.     U.S. Sentencing Guidelines Manual §§ 3D1.1,
3D1.2 (2012).   The court then used the adjusted offense level
for  the   § 922(g)   count  in   calculating Carbajal-Tafolla’s
Guidelines range because it was higher than the adjusted offense
level for Group One. USSG § 3D1.4.



                                           2
Guidelines range, treating the Guidelines range as mandatory,

failing to consider the 18 U.S.C. § 3553(a) (2012) factors, and

failing to adequately explain the selected sentence.                                  Id.      If

the sentence is free from such procedural error, we consider

substantive reasonableness.              Id.

               Carbajal-Tafolla          argues           that      the   district         court

committed       procedural       error     by       improperly         assigning       a     base

offense level of twenty to his § 922(g) offense based on his

1999    drug     conspiracy      conviction.               The      Sentencing      Guidelines

generally apply a base offense level of fourteen to § 922(g)

offenses.        See     USSG    § 2K2.1(a)(6)(A)              (providing      base    offense

level of fourteen where defendant “was a prohibited person at

the     time    [he]     committed       the       instant       offense”).           If     “the

defendant committed any part of the instant offense subsequent

to    sustaining       one     felony    conviction            of     either    a    crime     of

violence or a controlled substance offense,” his base offense

level     is     twenty.         USSG     § 2K2.1(a)(4)(A).                    However,      the

commentary specifies that only felony convictions that receive

criminal       history    points     under         USSG    §     4A1.1(a),     (b),    or     (c)

should be counted for purposes of establishing a base offense

level    under    USSG     §    2K2.1(a)(4)(A).                USSG   § 2K2.1       cmt.   n.10.

Because Carbajal-Tafolla received a sentence of less than one

year and one month for his 1999 drug conspiracy conviction, it

is countable under USSG § 4A1.1(b) only if that sentence “was

                                               3
imposed within ten years of the defendant’s commencement of the

instant offense.”        USSG § 4A1.2(e)(2).

            Pursuant to § 4A1.1(b), Carbajal-Tafolla’s 1999 drug

conspiracy    conviction          received       two    criminal    history     points.

Carbajal-Tafolla         conceded         that    his     1999      drug     conspiracy

conviction qualified for two criminal history points because the

sentence for that offense was imposed within ten years of the

commencement of one of his current offenses, namely the illegal

reentry   conviction         in   Count    Three.        However,     he   argues    that

counting the 1999 conviction for purposes of criminal history

points because the sentence was imposed within ten years of the

commencement of one of his current offenses does not make it

countable    for   purposes         of    establishing     a   base    offense      level

under   § 2K2.1(a)(4)         for    his    § 922(g)      conviction       because    his

firearm offense was not grouped with the offense that qualified

the 1999 conviction for criminal history points.                      We agree.

            Although Carbajal-Tafolla’s 1999 conviction qualified

for criminal history points, it did so for reasons completely

unrelated    to    his   §    922(g)       offense,     namely     because    his    1999

sentence was imposed within ten years of commencement of his

Count Three offense, illegal reentry by an aggravated felon.

Carbajal-Tafolla’s § 922(g) offense occurred on or about January

10, 2013, nearly fourteen years after the imposition of the drug

conspiracy sentence.              Carbajal-Tafolla did not commit any part

                                             4
of   his   §    922(g)       offense   within          ten     years    of   sustaining   a

qualifying felony conviction for purposes of imposing a base

offense    level       of     twenty   pursuant         to     USSG     § 2K2.1(a)(4)(A).

Accordingly,         we     conclude   that       the        district    court   committed

procedural      error       in   establishing          the    base     offense   level   for

Count One. 2

               For    these      reasons,         we     vacate        Carbajal-Tafolla’s

sentence and remand for resentencing.                           We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                                     VACATED AND REMANDED




      2
       Because we conclude that Carbajal-Tafolla’s sentence is
procedurally unreasonable and vacate the sentence on that basis,
we decline to address Carbajal-Tafolla’s challenge to the
substantive reasonableness of the sentence.   Gall, 552 U.S. at
51.



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