                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 18 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50275

              Plaintiff - Appellee,              D.C. No. 2:03-cr-01200-CBM-1

 v.
                                                 MEMORANDUM*
DAVID LAZO-ROMERO,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Central District of California
              Consuelo B. Marshall, Senior District Judge, Presiding

                      Argued and Submitted February 5, 2016
                               Pasadena, California

Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.

      David Lazo-Romero (Lazo) violated the conditions of his supervised release

and was sentenced to 18 months in prison. This sentence was based in part on a

criminal-history category of V. At Lazo’s original sentencing, however, the district

court determined that category IV better represented his criminal history. Lazo argues



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
that on revocation, he was entitled to be sentenced based on the same determination.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we remand

for resentencing.

      Lazo was convicted in 2005 of illegal reentry into the United States. The United

States Probation Office prepared a Pre-Sentencing Report (PSR), in which it

determined that Lazo’s criminal history placed him in category V on the Sentencing

Table. At sentencing, Lazo argued that his criminal-history category should be IV,

for two reasons: first, because he was not actually on parole or probation when he

committed the offense that led to the original sentencing proceeding, and second,

because in any case a criminal-history category of V overstated his true criminal

history. The district court declined to decide the first argument. Instead, it concluded

that even if the government were correct that Lazo had been under a criminal

sentence, Lazo had the better of the second argument. It therefore determined, under

United States Sentencing Guidelines (“USSG” or “Guidelines”) § 4A1.3, that Lazo

deserved a criminal-history category of IV.

      Lazo violated the terms of his supervised release and was returned to district

court for revocation and sentencing. The district court assumed that the criminal-

history category of V contained in the 2005 PSR was the criminal-history category




                                           2
“applicable at the time [Lazo] originally was sentenced to a term of supervision,”

§ 7B1.4 n.*, and sentenced Lazo to 18 months in prison.

      Lazo failed to object at revocation sentencing to the use of criminal-history

category V. Ordinarily, therefore, our review would be for plain error. United States

v. Joseph, 716 F.3d 1273, 1276 (9th Cir. 2013). However, when an “‘appeal presents

a pure question of law and there is no prejudice to the opposing party’ that resulted

from a defendant’s failure to object,” we may apply de novo review. Id. n.4 (quoting

United States v. Gonzalez-Aparicio, 663 F.3d 419, 426 (9th Cir. 2011)). Here, the sole

question is the interpretation of the Guidelines, and “the government is not prejudiced

by our requirement that the district court correctly calculate the Guidelines sentencing

range before it imposes a sentence.” United States v. Evans-Martinez, 611 F.3d 635,

642 (9th Cir. 2010).

      We hold that when the original sentencing court finds under USSG § 4A1.3 that

the criminal-history category proposed by the PSR is overstated without making a

determination under §§ 4A1.1-4A1.2, the § 4A1.3 category is “the category applicable

at the time the defendant originally was sentenced to a term of supervision.” USSG

§ 7B1.4 n.*. This is so because the § 4A1.3 category is the only criminal-history

category that was “determined at the time the defendant originally was sentenced.” Id.

cmt. n.1. Our holding today does not determine which criminal-history category


                                           3
should be used on revocation sentencing when the original sentencing court made an

initial determination under §§ 4A1.1-4A1.2 but then departed under § 4A1.3. That

question remains open in this Circuit. Cf. United States v. McKinney, 520 F.3d 425,

430 (5th Cir. 2008); United States v. Hendershot, 469 F.3d 703, 705 (8th Cir. 2006).

      Here, the original sentencing court expressly refused to determine a criminal-

history category under §§ 4A1.1-4A1.2. The judge stated: “I’m not able to determine

whether summary probation was given for some certain period of time or it ended

once he finished serving the sentence. I just don’t know. Can’t determine from that.”1

Instead, the court held that regardless of the outcome under §§ 4A1.1-4A1.2,

“[category] 5 overstates the criminal history and it should be a 4.” Thus, only one

criminal-history category was ever “determined at the time the defendant originally

was sentenced”: criminal-history category IV. See USSG § 7B1.4 cmt. n.1. That is

therefore the criminal-history category that should have been used at revocation

sentencing. Id. Because Lazo would in all likelihood have been released this month

absent the error in sentencing, the mandate shall issue forthwith and the case is

remanded to the district court for immediate resentencing.

VACATED and REMANDED. MANDATE TO BE ISSUED FORTHWITH.


      1
       Although a district court typically must rule on any disputed portion of a
presentencing report, it need not if it concludes that “the matter will not affect
sentencing.” Fed. R. Crim. P. 32(i)(3)(B).
                                          4
