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United States v. Juan Olibas-Valenzuela

Court of Appeals for the Ninth Circuit · 10-50175 · 2010-11-22 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Juan OLIBAS-VALENZUELA, Defendant-Appellant

Proceeding
appeal
Trial court
United States District Court for the Southern District of California
Trial judge
Gordon Thompson (district judge)
Outcome
vacated — VACATED and REMANDED for resentencing.
Area
criminal
Panel
Atsushi W. Tashima (author), Marsha S. Berzon, Richard R. Clifton

Analysis

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Opinion

FILED NOT FOR PUBLICATION NOV 22 2010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. 10-50175 Plaintiff - Appellee, D.C. No. 3:09-cr-02938-GT v. MEMORANDUM * JUAN OLIBAS-VALENZUELA, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Gordon Thompson, District Judge, Presiding Submitted November 16, 2010 ** Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.

Juan Olibas-Valenzuela appeals from the 12-month sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

* 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). Olibas-Valenzuela contends that the supervised release revocation procedures set forth in 18 U.S.C. § 3583(e)(3) violate Apprendi v. New Jersey, 530 U.S. 466 (2000) and United States v. Booker, 543 U.S. 220 (2005). As Olibas- Valenzuela concedes, this contention is foreclosed by United States v. Santana, 526 F.3d 1257, 1262 (9th Cir. 2008), and United States v. Huerta-Pimental, 445 F.3d 1220, 1225 (9th Cir. 2006).

Olibas-Valenzuela further argues that the district court procedurally erred by failing to calculate and consider the applicable advisory Guidelines range. The record reveals that the district court committed a significant procedural error because it did not calculate the advisory Guidelines range, and neither the parties nor the probation office identified the applicable range. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Denton, 611 F.3d 646, 651 (9th Cir.

2010). The Government has not met its burden of showing that the error was harmless; therefore, we vacate the sentence and remand for resentencing. United States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008) (stating that this court “will remand non-harmless procedural errors”).

2 10-50175 Because the district court’s failure to calculate the advisory Guidelines range requires remand for resentencing, it is unnecessary to address Olibas-Valenzuela’s remaining claims of procedural error at sentencing.

VACATED and REMANDED for resentencing.

3 10-50175

Cites, in this corpus