United States v. McENRY

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10433

Plaintiff-Appellee, D.C. No.

v.  1:09-cr-048

MICHAEL MCENRY, OWW

Defendant-Appellant.

 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.

18903

UNITED STATES v. MCENRY 18905

COUNSEL

Eric V. Kersten, Assistant Federal Defender, Fresno, Califor-

nia, for the defendant-appellant.

Karen A. Escobar, Assistant United States Attorney, Fresno,

California, for the plaintiff-appellee.

18906 UNITED STATES v. MCENRY

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.

UNITED STATES v. MCENRY 18907

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 take-

off. On investigating McEnry, the Federal Aviation Adminis-

tration (“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 ulti-

mately 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 serv-

ing 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 sub-

stances 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 transporta-

tion. 49 U.S.C. § 46306(a).

4

At sentencing, the government presented a variety of evidence suggest-

ing that McEnry was involved in drug trafficking. Neither party argues

18908 UNITED STATES v. MCENRY

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 anal-

ogous,” 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 particu-

larly close in terms of conduct.” The court gave McEnry a

three-point downward adjustment for acceptance of responsi-

bility and found him to be in Criminal History Category I.

Determining that “given . . . the overall totality of the circum-

that this evidence was relevant to the determination of the correct guide-

line. The district court determined that the drug trafficking-related evi-

dence is “not any evidence” which “simply doesn’t approach

preponderance, doesn’t even approach the sufficiency to draw an infer-

ence,” 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.

UNITED STATES v. MCENRY 18909

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 Sen-

tencing 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 appropri-

ate 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 transporta-

tion 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 omit-

ted), but this standard of review is not determinative of this appeal.

18910 UNITED STATES v. MCENRY

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 par-

ties’ 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 ques-

tion 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 analo-

gous 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 com-

ment to the section: “The court is required to determine if there is a suffi-

ciently analogous offense guideline and, if so, to apply the guideline that

is most analogous.” U.S.S.G. § 2X5.1 cmt. background.

UNITED STATES v. MCENRY 18911

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 Craw-

ford, multiple guidelines appeared to fit the circumstances of

the defendant’s crime. The defendant was convicted of violat-

ing 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 evi-

dence 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 Craw-

ford’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, con-

cluding 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 convic-

tion (i.e., the offense conduct charged in the count of the

indictment . . . of which the defendant was convicted)” gener-

ally requires selecting the guideline specific to the statute of

conviction from the Statutory Index of the Guidelines. Craw-

ford, 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 adjust-

ments 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-

18912 UNITED STATES v. MCENRY

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 distribu-

tion 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 con-

trast, 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 particu-

lar 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 origi-

nal).7 We also noted that a district court “cannot consider rele-

vant 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 con-

spiracy. 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.

UNITED STATES v. MCENRY 18913

determination. Id. We made clear that the factual inquiry at

that stage was extremely limited, noting that “ ‘[r]elevant con-

duct may not be used to select a guideline under § 1B1.2. Rel-

evant 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 amend-

ment, which was “intended to emphasize that the sentencing

court must apply the offense guideline referenced in the Statu-

tory Index,” unless the case fell into a single specified excep-

tion, confirmed our interpretation of the interrelationship of

§ 1B1.2(a) and the Statutory Index. Id. It removed an applica-

tion note to § 1B1.2 that “provided that in many instances it

would be appropriate for the court to consider the actual con-

duct 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 determina-

tion 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).

18914 UNITED STATES v. MCENRY

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 excep-

tion’ 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 Stat-

utory 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 inter-

preted 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).

UNITED STATES v. MCENRY 18915

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 convic-

tion . . . .’ ”) (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 convic-

tion 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 analo-

gous 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 anal-

ogous” 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. Coth-

ran, 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 proposi-

tion that “[w]hether there is a sufficiently analogous guideline to a particu-

lar 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

18916 UNITED STATES v. MCENRY

[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 rel-

evant 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 . . . .”) (inter-

nal 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 analo-

gous 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 Guide-

lines 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 analo-

gous” 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.

UNITED STATES v. MCENRY 18917

is nearly identical to a federal offense that is listed in the Stat-

utory 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 authoriz-

ing the individual to serve in that capacity.” This section,

however, applies only to aircraft not used to provide air trans-

portation. 49 U.S.C. § 46306(a). Another provision governs

the same conduct in the context of providing air transporta-

tion: “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 oper-

ating an aircraft in air transportation without an airman’s cer-

tificate 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 certifi-

cate. 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 restric-

tions.”).

[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 traffick-

ing — and not section 2D1.2 — relating to protected locations

or individuals — is presumptively the guideline ‘most appli-

18918 UNITED STATES v. MCENRY

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 situa-

tion that is governed by Crawford and Takahashi. For exam-

ple, 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 con-

victed of contempt of court. 137 F.3d at 1161. Contempt has

its own assigned Chapter Two guideline, § 2J1.1. That guide-

line provides, in full, that district judges should “[a]pply

§ 2X5.1 (Other Offenses).” U.S.S.G. § 2J1.1. The commen-

tary to § 2J1.1 explicitly invites the sentencing court to con-

sider 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 mis-

conduct had on the administration of justice, and the need to

vindicate the authority of the court are highly context-

dependent.” U.S.S.G. § 2J1.1 cmt. 1. Because the require-

ments of § 1B1.2(a) are already satisfied by the selection of

§ 2J1.1, however, different rules apply to § 2X5.1 in that con-

text.14

Finally, the government suggests for the first time in a 28(j)

letter that the district court’s error was harmless. That argu-

ment, however, was available at the time it filed its answering

brief.15 Accordingly, the government has waived that argu-

14

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

UNITED STATES v. MCENRY 18919

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 circum-

stances, 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 com-

mitted 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 harm-

less 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-

18920 UNITED STATES v. MCENRY

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 sen-

tence if the correct Guidelines range was ‘kept in mind throughout the pro-

cess.’ ” Munoz-Camarena, 631 F.3d at 1031 (quoting Carty, 520 F.3d at

991).