United States v. Jorge Aguila
UNITED STATES of America, Plaintiff-Appellee, v. Jorge Antonio AGUILA, Defendant-Appellant
- Area
- other
- Panel
- Edward Leavy (author), James S. Hawkins, Thomas
Analysis
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Opinion
FILED NOT FOR PUBLICATION AUG 24 2010
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50209 Plaintiff - Appellee, D.C. No. 3:05-cr-01919-DMS v. JORGE ANTONIO AGUILA, MEMORANDUM * Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted August 23, 2010 ** Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges.
Jorge Antonio Aguila appeals from the sentence imposed following revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
Aguila contends the district court abused its discretion by sentencing him * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). based on an offense of unlawful sexual intercourse with a minor that never occurred. We vacate and remand for resentencing because it is not clear from the record whether the district court considered the non-existent offense in imposing its sentence at the revocation hearing. See, e.g., United States v. Rodriguez- Martinez, 25 F.3d 797, 800 n.3 (9th Cir. 1994) (remanding on another ground, but stating that “the record is unclear as to whether the sentencing court considered a 1974 narcotics conviction to be evidence of Rodriguez’s recidivist nature”).
We do not reach Aguila’s remaining contention.
SENTENCE VACATED AND REMANDED.
2 10-50209