United States v. Roberto Garcia-Garcia
UNITED STATES of America, Plaintiff-Appellee, v. Roberto GARCIA-GARCIA, A.K.A. Enrique Garcia-Garcia, Defendant-Appellant
- Area
- other
- Panel
- Johnnie B. Rawlinson (author), Mary H. Murguia, Paul J. Watford
Analysis
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Opinion
FILED NOT FOR PUBLICATION OCT 10 2012
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. 11-50544 Plaintiff - Appellee, D.C. No. 3:10-cr-02961-GT v. MEMORANDUM * ROBERTO GARCIA-GARCIA, a.k.a. Enrique Garcia-Garcia, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Gordon Thompson, Jr., District Judge, Presiding Submitted October 9, 2012 ** Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Roberto Garcia-Garcia appeals from the 57-month sentence imposed following his guilty-plea conviction to being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
* 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). § 1291, and we vacate and remand for resentencing.
The parties agree, and we concur, that the district court erred in imposing a 16-level increase in Garcia-Garcia’s base offense level under U.S.S.G.
§ 2L1.2(b)(1)(A)(i), because the documentation submitted by the government did not provide clear and convincing evidence that Garcia-Garcia had a prior drug-trafficking conviction. See United States v. Bonilla-Montenegro, 331 F.3d 1047, 1050 (9th Cir. 2003) (government must prove prior conviction by clear and convincing evidence when it seeks a 16-level sentencing enhancement).
Accordingly, we vacate the judgment and remand for resentencing. Given the government’s representation that the documents in the record are the only available documents concerning Garcia-Garcia’s prior offense, on remand the district court is directed to calculate the advisory Sentencing Guidelines range by applying an enhancement of no more than eight levels under U.S.S.G. § 2L1.2(b).
Garcia-Garcia’s request for judicial notice is granted.
The clerk shall issue the mandate forthwith.
VACATED and REMANDED.
2 11-50544