USA v. Michael McEnry

Filing

FILED OPINION (A. WALLACE TASHIMA, JOHNNIE B. RAWLINSON and TERRY J. HATTER) VACATED; REMANDED. Judge: AWT Authoring, Judge: JBR , Judge: TJH FILED AND ENTERED JUDGMENT. [7926295]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL MCENRY,
Defendant-Appellant.





No. 10-10433
D.C. No.
1:09-cr-048
OWW
OPINION

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted
July 22, 2011—San Francisco, California
Filed October 13, 2011
Before: A. Wallace Tashima and Johnnie B. Rawlinson,
Circuit Judges, and Terry J. Hatter, Senior District Judge.*
Opinion by Judge Tashima

*The Honorable Terry J. Hatter, Senior United States District Judge for
the Central District of California, sitting by designation.

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COUNSEL
Eric V. Kersten, Assistant Federal Defender, Fresno, California, for the defendant-appellant.
Karen A. Escobar, Assistant United States Attorney, Fresno,
California, for the plaintiff-appellee.

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OPINION
TASHIMA, Circuit Judge:
Michael McEnry (“McEnry”) was convicted, on a plea of
guilty, of serving as an airman without an airman’s certificate,
in violation of 49 U.S.C. § 46306(b)(7). He appeals from his
sentence on the ground that the district court procedurally
erred by sentencing him pursuant to U.S.S.G. § 2A5.2, rather
than U.S.S.G. § 2B1.1. We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742, and we vacate the sentence and
remand for resentencing.
I.
On January 5, 2009, McEnry landed a Cessna 210F aircraft
at the Eastern Sierra Regional Airport in Bishop, California.
The circumstances of his landing were unusual: he did not
communicate with the airport by radio during his approach
and landing, and he touched down significantly farther along
the runway than would be the case on a normal landing. When
the plane did land, it overran the runway. McEnry’s behavior
on getting out of the plane was also unusual. He tied the plane
down at its two wings, but neglected to tie down the tail, as
one would normally do. He did not walk purposefully toward
the terminal, but wandered about before approaching it. On
arriving at the terminal, he asked where he was and claimed
that he had flown through military airspace, during which
time military aircraft flew alongside him and fired flares.
Someone at the airport called the police, reporting that
McEnry might have been under the influence while flying.1
1

The cause of McEnry’s erratic behavior is disputed. The district court
ultimately ruled that, regardless of the cause, McEnry was in a condition
in which he should not have been flying, and neither party contends that
the issue has any bearing on the selection of the guideline under which
McEnry should have been sentenced.

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At the time McEnry landed, another aircraft had been
scheduled to take off, but the pilot delayed his launch because
he saw McEnry’s plane coming in before he began his takeoff. On investigating McEnry, the Federal Aviation Administration (“FAA”) determined that he had no airman’s
certificate, i.e., a pilot’s license. He had been issued a student
pilot’s certificate in 1986, which expired 24 months after its
issuance.2 The FAA also determined that the aircraft had not
had a required annual inspection since October 2004 and had
a number of mechanical problems, leading it to conclude that
the plane should not be flown. Before the plane was ultimately flown out of Eastern Sierra Regional Airport, the FAA
required “some bare minimum” maintenance that gave the
FAA agent “some comfort in saying . . . you’re okay to take
this one-time flight to a place where all the rest of the repairs
could be done.” An FAA agent testified that “there was a lot
that needed to be done” to make McEnry’s plane airworthy.
McEnry was charged with violating 49 U.S.C.
§§ 46306(b)(7), which prohibits knowingly and willfully serving or attempting to serve as an airman without an airman’s
certificate authorizing such service,3 and 46306(c)(2), which
provides for a higher statutory maximum if the violation is
related to transporting a controlled substance by aircraft or
aiding or facilitating certain controlled substance violations.
He pled guilty, without a plea agreement, to violating
§ 46306(b)(7) after the government agreed to move to dismiss
the § 46306(c)(2) charge; however, the government reserved
its right to present its evidence with regard to controlled substances at sentencing.4
2

There is some evidence that, subsequent to his arrest in this case,
McEnry made false statements in his application for a pilot’s license. As
with the cause of McEnry’s behavior, this evidence has no bearing on the
question before the panel.
3
This statute applies only to aircraft not used to provide air transportation. 49 U.S.C. § 46306(a).
4
At sentencing, the government presented a variety of evidence suggesting that McEnry was involved in drug trafficking. Neither party argues

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No sentencing guideline expressly applies to McEnry’s
crime of conviction. 49 U.S.C. § 46306(b); U.S.S.G. App’x
A. Accordingly, the guidelines specify that the district court
must “apply the most analogous offense guideline” or, “[i]f
there is not a sufficiently analogous guideline,” sentence the
defendant pursuant to 18 U.S.C. § 3553. U.S.S.G. § 2X5.1.
The Probation Officer recommended that the court apply
§ 2A5.2(a)(2)(A), the guideline for interference with a flight
crew member or interference with the dispatch, navigation,
operation, or maintenance of a mass transportation vehicle,
where the offense involved recklessly endangering the safety
of an airport or aircraft. Under this guideline, McEnry’s Base
Offense Level was 18. The government argued that this was
the correct guideline, because the offense involved recklessly
endangering the safety of an aircraft. McEnry contended that
“[i]t is questionable whether any guideline is sufficiently analogous,” and argued that four other guidelines, including
§ 2B1.1(b)(13), were more analogous to his offense. Section
2B1.1 provides for a Base Offense Level of 6. Section
2B1.1(b)(13) establishes an enhancement for reckless risk of
death or serious bodily injury; this enhancement would raise
McEnry’s Offense Level to 14.
Following an evidentiary hearing, the court concluded that
although § 2A5.2(a)(2) was “not that suitable and not that
analogous really, [it was] the only guideline that is particularly close in terms of conduct.” The court gave McEnry a
three-point downward adjustment for acceptance of responsibility and found him to be in Criminal History Category I.
Determining that “given . . . the overall totality of the circumthat this evidence was relevant to the determination of the correct guideline. The district court determined that the drug trafficking-related evidence is “not any evidence” which “simply doesn’t approach
preponderance, doesn’t even approach the sufficiency to draw an inference,” and concluded that it “d[id]n’t find any basis in fact or law to
enhance the sentence based on the evidence that’s been received.” The
government does not contest this finding. Accordingly, this evidence is not
relevant to McEnry’s appeal.

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stances . . . a sentence in the middle of the guidelines is a fair
sentence and appropriate,” the court sentenced McEnry to a
21-month term of imprisonment. This appeal followed.
II.
We review de novo the district court’s interpretation of the
sentencing guidelines, and review the district court’s findings
of fact for clear error. United States v. Laurienti, 611 F.3d
530, 551-52 (9th Cir. 2010).5
III.
The sole question in dispute is which section of the Sentencing Guidelines applies to McEnry’s offense, “knowingly
and willfully serv[ing] . . . as an airman without an airman’s
certificate authorizing [him] to serve in that capacity” when
the aircraft is not used to provide air transportation. 49 U.S.C.
§ 46306(b)(7). The district court applied § 2A5.2, which
applies, inter alia, to 49 U.S.C. §§ 46308 (interference with
air navigation), 46503 (interference with airport security
screening personnel), and 46504 (interference with flight crew
members and attendants). The government contends that this
was the correct provision. McEnry contends that the appropriate provision is § 2B1.1, a general fraud and deceit guideline,
which applies, inter alia, to “knowingly and willfully serv[ing] . . . as an airman operating an aircraft in air transportation without an airman’s certificate authorizing the individual
to serve in that capacity.” 49 U.S.C. § 46317(a)(1).
[1] It is undisputed that no guideline directly applies to the
offense of conviction in this case. Thus, it is also undisputed
that the sentencing court must, under U.S.S.G. § 2X5.1 “apply
5

There is “an intracircuit conflict as to whether the standard of review
for application of the Guidelines to the facts is de novo or only for abuse
of discretion,” Laurienti, 611 F.3d at 552 (internal quotation marks omitted), but this standard of review is not determinative of this appeal.

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the most analogous offense guideline” if one exists or, “[i]f
there is not a sufficiently analogous guideline,” sentence the
defendant pursuant to 18 U.S.C. § 3553.6 The core of the parties’ dispute is how a district court should determine which
guideline is “the most analogous offense guideline” under
§ 2X5.1. Under our standard of review, this interpretive question is properly reviewed de novo.
[2] Although we have not previously had the occasion to
consider § 2X5.1 in depth, we have addressed the broader
question of how a district court must proceed in selecting an
appropriate guideline. When deciding which guideline to
apply, a district court must determine the guideline section in
Chapter Two (Offense Conduct) “applicable to the offense of
conviction (i.e., the offense conduct charged in the count of
the indictment or information of which the defendant was
convicted).” U.S.S.G. § 1B1.2(a). To do this, the court is to
refer to the Statutory Index, Appendix A of the Guidelines, to
find the offense of conviction, or, if the offense is not listed
in the Statutory Index, apply § 2X5.1 to find the most analogous guideline. Id. Applying the language quoted above, we
have previously emphasized that it is not the defendant’s
underlying relevant conduct, but the crime of conviction, that
governs the selection of the appropriate guideline section.
Thus, in United States v. Lawton, 193 F.3d 1087, 1094 (9th
Cir. 1999), superseded in part on other grounds, U.S.S.G.
6

Section 2X5.1 provides, in relevant part:
If the offense is a felony for which no guideline expressly has
been promulgated, apply the most analogous offense guideline. If
there is not a sufficiently analogous guideline, the provisions of
18 U.S.C. § 3553 shall control, except that any guidelines and
policy statements that can be applied meaningfully in the absence
of a Chapter Two offense guideline shall remain applicable.

U.S.S.G. § 2X5.1. Further guidance is provided by the background comment to the section: “The court is required to determine if there is a sufficiently analogous offense guideline and, if so, to apply the guideline that
is most analogous.” U.S.S.G. § 2X5.1 cmt. background.

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App’x C. para. 604 (2000), as recognized in United States v.
Barragan-Espinoza, 350 F.3d 978, 983 (9th Cir. 2003), we
noted that a district court may not use relevant conduct to
select whatever guideline it wants; relevant conduct may be
considered only in the application of enhancements and
adjustments once a guideline has been selected.
The court developed this line of reasoning in United States
v. Takahashi, 205 F.3d 1161 (9th Cir. 2000), and United
States v. Crawford, 185 F.3d 1024 (9th Cir. 1999). In Crawford, multiple guidelines appeared to fit the circumstances of
the defendant’s crime. The defendant was convicted of violating 21 U.S.C. § 841(a), which is generally punished under
§ 2D1.1. 185 F.3d at 1025-27; see U.S.S.G. App’x A. The
selection of a guideline was complicated, however, by evidence that the defendant committed the crime within 1,000
feet of a school, which, if charged under 21 U.S.C. § 860,
would result in the defendant’s being sentenced under
§ 2D1.2. Crawford, 185 F.3d at 1025-26. Although Crawford’s plea agreement provided for dismissal of all counts
charging the school proximity element, the district court
nonetheless applied the latter guideline. Id. We reversed, concluding that § 1B1.2(a)’s admonition that the court
“[d]etermine the offense guideline section in Chapter Two
(Offense Conduct) most applicable to the offense of conviction (i.e., the offense conduct charged in the count of the
indictment . . . of which the defendant was convicted)” generally requires selecting the guideline specific to the statute of
conviction from the Statutory Index of the Guidelines. Crawford, 185 F.3d at 1027 (alterations in original) (quoting
U.S.S.G. § 1B1.2 (1998)). Only after the correct Chapter Two
guideline had been selected was the district court to select the
appropriate base offense level and, after that, make the adjustments within that guideline section. Id. Because only § 2D1.1
was listed in the statutory table as an appropriate guideline for
21 U.S.C. § 841(a), that guideline was “presumptively the
guideline ‘most applicable to the offense of conviction’ ”;
other relevant conduct could be considered only in ascertain-

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ing which adjustments to apply within the guideline section.
Id. at 1027-28 (quoting U.S.S.G. § 1B1.2(a) (1998)).
Takahashi involved facts similar to Crawford, but with one
key distinction. In Crawford, the defendant had been indicted
on four counts, which were later dismissed, charging distribution of cocaine base within 1,000 feet of a school. Id. at 1025.
Accordingly, there was no count of conviction for which
§ 2D1.2 was the appropriate guideline. In Takahashi, by contrast, the defendant was convicted of violating 21 U.S.C.
§ 846, as well as 21 U.S.C. § 841(a). See 205 F.3d at 1163.
Under § 846, unlike under § 841(a), § 2D1.2 is listed as one
of several appropriate guidelines in the Statutory Index. Id. at
1167. Accordingly, we were required to consider the choice
between multiple guidelines authorized by the Statutory
Index.
As in Crawford, we concluded that use of § 2D1.2 was
improper. Id. We noted that the guidelines provide that “when
‘more than one guideline section is referenced for the particular statute, [courts should] use the guideline most appropriate
for the nature of the offense conduct charged in the count of
which the defendant was convicted.’ ” Id. (quoting U.S.S.G.
App’x A introduction) (alterations and emphasis in the original).7 We also noted that a district court “cannot consider relevant but uncharged conduct at this stage of the Guidelines
process.” Id. Some facts of a given case, however, may be
necessary to select the relevant guideline. For example, “ ‘a
court must necessarily consider the object of the conspiracy’ ”
when determining the nature of the offense conduct for conspiracy. Id. (quoting Crawford, 185 F.3d at 1028). In
Takahashi, we looked to the indictment to determine what
facts were necessary for the selection of the guideline offense,
as opposed to relevant but uncharged conduct, to make that
7

The words “the nature of” were removed from the Statutory Index by
Amendment 591, effective November 1, 2000. U.S.S.G. App’x C para.
591.

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determination. Id. We made clear that the factual inquiry at
that stage was extremely limited, noting that “ ‘[r]elevant conduct may not be used to select a guideline under § 1B1.2. Relevant conduct may be considered only in the imposition of
guidelines enhancements and adjustments, once a guideline
has been selected.’ ” Id. (quoting Lawton, 193 F.3d at 1094).
Shortly after we decided Crawford and Takahashi, the
Guidelines were amended in light of the issues addressed in
those cases. See U.S.S.G. App’x C para. 591. The amendment, which was “intended to emphasize that the sentencing
court must apply the offense guideline referenced in the Statutory Index,” unless the case fell into a single specified exception, confirmed our interpretation of the interrelationship of
§ 1B1.2(a) and the Statutory Index. Id. It removed an application note to § 1B1.2 that “provided that in many instances it
would be appropriate for the court to consider the actual conduct of the offender, even if such conduct did not constitute
an element of the offense.” Id. Amendment 591 also revised
the introduction to the Statutory Appendix and § 1B1.1(a),
removing a sentence suggesting that in atypical cases the
defendant’s offense conduct should be considered in selecting
a guideline section from the former, and a sentence indicating
that the Statutory Index merely “assist[s]” in the determination of the proper guideline from the latter.8 See id.; compare
8

To the extent that some of our cases rely on the excised language
(directly or indirectly) to suggest that relevant conduct may be used to
select the appropriate guideline pursuant to U.S.S.G. § 1B1.2(a) and the
Statutory Index, they have been superseded by this amendment. See, e.g.,
United States v. Lomow, 266 F.3d 1013, 1019 n.2 (9th Cir. 2001) (quoting,
in dicta, Crawford’s reference to the later-excised language and citing
United States v. Cambra, 933 F.2d 752 (9th Cir. 1991), which relies on
superseded language); United States v. Fulbright, 105 F.3d 443 (9th Cir.
1997), overruled on other grounds by United States v. Heredia, 483 F.3d
913 (9th Cir. 2007); United States v. Van Krieken, 39 F.3d 227, 230 (9th
Cir. 1994); United States v. Hanson, 2 F.3d 942, 947 (9th Cir. 1993);
Cambra, 933 F.2d at 754-55; cf. United States v. Aragbaye, 234 F.3d
1101, 1104 (9th Cir. 2000) (applying 1997 guidelines).

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U.S.S.G. § 1B1.1(a) & App’x A introduction (1998) with
U.S.S.G. § 1B1.1(a) & App’x A introduction (2000); see also
United States v. Johnson, 297 F.3d 845, 867 (9th Cir. 2002)
(“[T]he Sentencing Guidelines have been amended to clarify
that courts should deviate from the offense level provided by
Appendix A only in cases involving the ‘stipulation exception’ in § 1B1.2(a), which does not apply here.”) (footnotes
omitted).
[3] The amended Guidelines, together with Crawford and
Takahashi, establish the principles which govern the selection
of the applicable guideline for a given offense. As relevant
here, those principles are that the selection of a guideline is
primarily a statutory question, and to the extent the court is
required to look to the facts to select a guideline, the court is
limited to the conduct charged in the indictment.
[4] These principles necessarily govern the selection of a
guideline under § 2X5.1. Section 1B1.2 provides two basic
means of selecting a relevant Chapter Two guideline: the Statutory Index and § 2X5.1. U.S.S.G. § 1B1.2(a).9 We conclude
that the general language interpreted by Crawford and
Takahashi, which precedes the paragraph setting forth these
two means, applies to both. Not only does the structure of the
provision suggest this reading, but the language we interpreted in Crawford and Takahashi is nearly identical to the
9

Section 1B1.2(a) provides, in relevant part:
Determine the offense guideline section in Chapter Two (Offense
Conduct) applicable to the offense of conviction (i.e., the offense
conduct charged in the count of the indictment or information of
which the defendant was convicted). . . .
Refer to the Statutory Index (Appendix A) to determine the
Chapter Two offense guideline, referenced in the Statutory Index
for the offense of conviction. . . . For statutory provisions not
listed in the Statutory Index, use the most analogous guideline.
See § 2X5.1 (Other Offenses).

U.S.S.G. § 1B1.2(a).

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language of § 2X5.1. Compare Crawford, 185 F.3d at 1027
(“ ‘[d]etermine the offense guideline section in Chapter Two
(Offense Conduct) most applicable to the offense of conviction . . . .’ ”) (emphasis added) (quoting U.S.S.G. § 1B1.2(a)
(1998)) with U.S.S.G. § 2X5.1 (“apply the most analogous
offense guideline”) (emphasis added).10 Moreover, we have
previously looked to § 1B1.2 in the § 2X5.1 context. See
United States v. Van Krieken, 39 F.3d 227, 230-31 (9th Cir.
1994).11
10

Section 1B1.2(a) was amended effective November 1, 2000, to
remove the word “most”. U.S.S.G. App’x C para. 591 (2000). While this
amendment makes its language appear less like § 2X5.1, it was, as noted
above, “intended to emphasize that the sentencing court must apply the
offense guideline referenced in the Statutory Index.” Id. Thus, while the
amendment makes the language of §§ 1B1.2(a) and 2X5.1 slightly less
analogous, it also strengthens the underlying point: the offense of conviction and its elements are what matter most in selecting an appropriate
guideline.
11
Although we rely on our own Circuit law and the plain language of
the Guidelines to decide this case, we note that our conclusion that the
application of § 2X5.1 to select an appropriate guideline for offenses not
listed in the Statutory Index is in the first instance a statutory question
determined by the elements of the offense is consistent with the dominant
approach to § 2X5.1 employed by our sister circuits. That approach, which
was set forth in depth in United States v. Osborne, 164 F.3d 434 (8th Cir.
1999), requires a “determination as to whether there is a sufficiently analogous guideline to the defendant’s crime” which “most generally will
involve comparing the elements of federal offenses to the elements of the
crime of conviction” prior to a more fact-bound analysis over which
guideline is “most analogous” if there is more than one “sufficiently analogous” guideline. Id. at 437-38; accord United States v. Saac, 632 F.3d
1203, 1213 (11th Cir. 2011) (“The most analogous guideline contemplated
by section 2X5.1 is the guideline that applies to the most analogous statute
of conviction.”) (internal quotation marks omitted); United States v. Cothran, 286 F.3d 173, 177 (3d Cir. 2002) (adopting the approach of Osborne);
United States v. Calbat, 266 F.3d 358, 363 (5th Cir. 2001) (quoting United
States v. Nichols, 169 F.3d 1255, 1270 (10th Cir. 1999), for the proposition that “[w]hether there is a sufficiently analogous guideline to a particular crime is generally a task of comparing the elements of the defendant’s
crime of conviction to the elements of federal offenses already covered by
a specific guideline”); Nichols, 169 F.3d at 1270; but cf. with United

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[5] Applying these principles to this case, we hold that the
district court erred in selecting § 2A5.2 as the most analogous
guideline. In concluding that § 2A5.2 was the appropriate
guideline to apply to McEnry’s offense, the district court
remarked that § 2A5.2 “isn’t directly applicable for the
offense, which is operating without the airman’s certificate.”
Explaining its choice, it noted that § 2A5.2 “does, if you will,
raise or track some of the kinds of risks that are raised.”12
Thus, the district court based its choice not on the elements
of the offense or the facts alleged in the indictment, but on the
defendant’s particular relevant conduct and the risk it created.13
[6] Considering the statute of conviction and excluding relevant uncharged conduct, by contrast, we conclude that
§ 2B1.1 is the correct guideline in this case. McEnry’s offense
States v. Brennan, 395 F.3d 59, 72 (2d Cir. 2005) (“[T]he determination
under USSG § 2X5.1 as to whether there is a single most analogous
offense guideline, and, if not, how to proceed under 18 U.S.C. § 3553(b),
involves the application of a guideline to the facts of a case . . . .”) (internal quotation marks omitted).
12
We note that the district court’s concern about McEnry’s recklessness
is also addressed by the correct guideline. See U.S.S.G. § 2B1.1(b)(13)
(enhancing the base offense level in cases involving conscious or reckless
risk of death or serious bodily injury). Even in cases where the most analogous guideline does not address a particularly important “circumstance[ ]
of the offense,” however, a district court is within its discretion to consider
that factor after correctly calculating the Guidelines range. 18 U.S.C.
§ 3553(a)(1); see United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008)
(en banc) (noting that the “district court may not presume that the Guidelines range is reasonable” and that the Guidelines factor should not “be
given more or less weight than any other”).
13
The indictment in this case makes no mention of recklessness. As
such, we express no opinion as to whether the district court’s look to the
allegations in the indictment to select the appropriate guideline would
have been permissible in this case. Moreover, because this case does not
present a situation where more than one guideline is “sufficiently analogous” to McEnry’s crime of conviction, U.S.S.G. § 2X5.1, we express no
opinion about whether the court might be permitted to look to more facts
in such a case.

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is nearly identical to a federal offense that is listed in the Statutory Index. McEnry was convicted of violating 49 U.S.C.
§ 46306(b)(7), which provides that “a person shall be . . .
imprisoned for not more than 3 years . . . if the person . . .
knowingly and willfully serves or attempts to serve in any
capacity as an airman without an airman’s certificate authorizing the individual to serve in that capacity.” This section,
however, applies only to aircraft not used to provide air transportation. 49 U.S.C. § 46306(a). Another provision governs
the same conduct in the context of providing air transportation: “An individual shall be . . . imprisoned for not more than
3 years . . . if that individual . . . knowingly and willfully
serves or attempts to serve in any capacity as an airman operating an aircraft in air transportation without an airman’s certificate authorizing the individual to serve in that capacity.”
49 U.S.C. § 46317(a)(1). The most analogous offense to
knowingly serving as an airman operating an aircraft not used
to provide air transportation without an airman’s certificate is
knowingly serving as an airman operating an aircraft that is
used to provide air transportation without an airman’s certificate. Cf. United States v. Carrillo-Hernandez, 963 F.2d 1316,
1318 (9th Cir. 1992) (“Here, the offense most analogous to
making false statements to a customs agent in the course of
evading export restrictions is the making of false statements
to a customs agent in the course of evading import restrictions.”).
[7] Because the Statutory Index provides that the only
guideline section to be applied to violations of 49 U.S.C.
§ 46317(a) is § 2B1.1, see U.S.S.G. App’x A, § 2B1.1 is also
the “most analogous offense guideline” for 49 U.S.C.
§ 46306(b)(7). U.S.S.G. § 2X5.1; cf. Crawford, 185 F.3d at
1027 (“[T]he Statutory Index identifies section 2D1.1 as the
appropriate guideline for violations of section 841(a). . . .
Thus, for Crawford, section 2D1.1 — relating to drug trafficking — and not section 2D1.2 — relating to protected locations
or individuals — is presumptively the guideline ‘most appli-

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cable to the offense of conviction.’ ”) (quoting U.S.S.G.
§ 1B1.2(a) (1998)).
United States v. Fisher, 137 F.3d 1158 (9th Cir. 1998),
cited by the government, is not to the contrary. Although
Fisher notes that “[t]he most analogous offense will vary
depending on the circumstances of a particular case,” it
addresses a different context from the present one. Id. at 1167.
As a catchall provision, § 2X5.1 can apply in situations other
than the initial selection of a Chapter Two guideline, a situation that is governed by Crawford and Takahashi. For example, it also applies in some instances in which the relevant
guideline, chosen pursuant to § 1B1.2(a), requires a look to
§ 2X5.1 and a resultant search for an analogous guideline.
Fisher involves such a case. In Fisher, the defendant was convicted of contempt of court. 137 F.3d at 1161. Contempt has
its own assigned Chapter Two guideline, § 2J1.1. That guideline provides, in full, that district judges should “[a]pply
§ 2X5.1 (Other Offenses).” U.S.S.G. § 2J1.1. The commentary to § 2J1.1 explicitly invites the sentencing court to consider offense conduct in applying that guideline, noting that
“the nature of the contemptuous conduct, the circumstances
under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to
vindicate the authority of the court are highly contextdependent.” U.S.S.G. § 2J1.1 cmt. 1. Because the requirements of § 1B1.2(a) are already satisfied by the selection of
§ 2J1.1, however, different rules apply to § 2X5.1 in that context.14
Finally, the government suggests for the first time in a 28(j)
letter that the district court’s error was harmless. That argument, however, was available at the time it filed its answering
brief.15 Accordingly, the government has waived that argu14
We express no opinion on how § 2X5.1 is to be applied in situations
other than in the initial selection of a guideline pursuant to § 1B1.2(a).
15
The government contends that its harmless error argument was not
previously available, relying on a new Seventh Circuit case, United States

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ment. See, e.g., Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999) ( “[O]n appeal, arguments not raised by a party in its
opening brief are deemed waived.”); cf. Randle v. Crawford,
604 F.3d 1047, 1056 (9th Cir. 2010) (“Under these circumstances, where Randle could not have raised his argument
prior to filing his opening brief on appeal, and where he
promptly raised the argument before us once the decision on
which it is based was issued, we conclude that Randle did not
waive this argument on appeal.”).16
IV.
[8] By relying on McEnry’s uncharged relevant conduct in
selecting the applicable guideline, the district court incorrectly
calculated McEnry’s Guidelines range. In doing so, it committed procedural error in sentencing him. Carty, 520 F.3d at
993. Accordingly, we vacate McEnry’s sentence and remand
v. Hill, 2011 WL 2611301 (7th Cir. Jul. 5, 2011), cited in its 28(j) letter,
in support. Hill, however, merely followed United States v. Anderson, 517
F.3d 953, 965-66 (7th Cir. 2008), on this point. See 2011 WL 2611301,
at *10. Thus the argument is not a new one and Hill did not make new law
on this point.
16

Even if the government had not waived this argument, it would not
have met its burden of demonstrating harmless error under the law of this
circuit. See, e.g., United States v. Beng-Salazar, 452 F.3d 1088, 1096 (9th
Cir. 2006) (noting that the burden is on the government to establish harmless error in sentencing). In United States v. Munoz-Camarena, 631 F.3d
1028 (9th Cir. 2011), which was filed before the government’s brief in this
case, we noted that “[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. Here (and unlike in both Hill
and Munoz-Camarena), the district court did not even state that it would
impose the same sentence regardless of the guideline calculation. Instead,
it stated that it “[did]n’t see any reason to depart here,” and imposed a sen-

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for resentencing under the correct guideline.
VACATED and REMANDED.

tence in the middle of the Guidelines range. Under these circumstances,
“[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.’ ” Munoz-Camarena, 631 F.3d at 1031 (quoting Carty, 520 F.3d at
991).