United States v. Garza, Daniel A. , 241 F. App'x 336 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 18, 2007*
Decided July 19, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 06-2566
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 04 CR 523
DANIEL GARZA,
Defendant-Appellant. Matthew F. Kennelly,
Judge.
ORDER
Daniel Garza pleaded guilty to two counts of possessing firearms as a felon,
see 18 U.S.C. § 922(g)(1), and was sentenced in the middle of the guidelines
imprisonment range. On appeal he challenges only the calculation of his total
offense level, which the government properly concedes is overstated by two levels.
Garza urges us to remand for resentencing, but the government proposes that we
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. Fed. R. App. P. 34(a)(2).
No. 06-2566 Page 2
first order a limited remand to ask the district court whether it would have imposed
the same sentences despite the error. See United States v. Paladino, 401 F.3d 471(7th Cir. 2005).
In his plea agreement Garza admitted possessing a “Tokerev, Model SKS,
7.62 caliber rifle” and an “Eddystone 1917 .30-06 caliber rifle.” The parties agreed
that the base offense level should be 24 because Garza had prior violent felony
convictions for attempted murder and aggravated battery, see U.S.S.G. § 2K2.1(a)(2)
(2005), but in drafting the presentence report the probation officer erroneously
asserted that the parties had also agreed that at least one of the guns was either an
assault weapon or a short-barreled rifle, which, if correct, would bring the base
offense level to 26, see id. § 2K2.1(a)(1). Based solely upon that misreading of the
plea agreement, the probation officer set the total offense level (after other
adjustments not contested here) at 27 instead of the agreed-to 25. Combining that
offense level with Garza’s criminal history category of IV, the probation officer
recommended a guidelines imprisonment range of 100 to 125 months. Garza never
objected to the mistake in calculating his base offense level, and at sentencing the
district court imposed a prison term of 110 months, reasoning that Garza’s
extensive criminal history warranted “something higher than the low end of the
sentencing guideline range.”
On appeal Garza asks this court to remand so that he can be resentenced
using the correct total offense level of 25. The government confesses error in the
application of the guidelines and agrees that a remand for resentencing would be an
appropriate remedy, but it suggests as an alternative that we first order a limited
remand under Paladino, 401 F.3d 471, to ask the district court whether it would
have imposed the same sentences had it known that the actual imprisonment range
was 84 to 105 months.
We reject the government’s reliance on Paladino. The first step in sentencing
is to calculate the guidelines range correctly, see, e.g., United States v. Nelson, ___
F.3d ___, No. 05-3624, 2007 WL 1774056, at *2 (7th Cir. June 21, 2007); United
States v. Hawk, 434 F.3d 959, 963 (7th Cir. 2006), and a mistake in that calculation
warrants resentencing, see United States v. Hagenow, 423 F.3d 638, 646-47 (7th Cir.
2005) (remanding for resentencing where miscalculation of defendant’s criminal-
history score increased imprisonment range); United States v. Jaimes-Jaimes, 406
F.3d 845, 850-51 (7th Cir. 2005) (remanding for resentencing where district court
overstated defendant’s base offense level by eight levels); United States v. Scott, 405
F.3d 615, 617, 620 (7th Cir. 2005) (outlining procedure and remanding for
resentencing where district court misapplied guidelines by miscalculating offense
level).
Accordingly, the sentences are VACATED, and the case is REMANDED for
resentencing consistent with this order.